Dear Mr R.,
On 20 November 1998, you sent a complaint to the European Ombudsman concerning the refusal of both the Selection Board of open competition COM/A/1049 to provide you with detailed information about the corrections made in your written tests, and that of the Commission to give you a copy of them.
On 2 December 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 9 March 1999, which I forwarded to you with an invitation to make observations, if you so wished. On 20 April 1999, I received your observations on the Commission's opinion.
In order to clarify some of the points made by the institution in the course of the inquiry, I asked the Commission for further information on 5 July 1999. The institution replied to this request by letter of 20 September 1999.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

The complainant participated in open competition COM/A/1049 for the constitution of a reserve list of administrators in the financial management and audit sectors.
By letter of 16 July 1998, the Chairman of the Selection Board informed the complainant that his score for the tests (b), (c) and (d) had been 14,748. Since the minimum requested was 15, he was informed that the remaining other three tests (e), (f) and (g) would not be corrected. The complainant wrote to the Selection Board and asked for the re-examination of his test on the grounds that the difference between the score obtained and the minimum required was only 0,252 points. He also requested more information on the criteria used by the Board for its evaluation of the tests, as well as a copy of his own marked papers.
On 20 October 1998 the Selection Board informed the complainant that, having compared the marks given to him with the corrections made by the evaluators, there was no discrepancy. As for the complainant's demand to have access to his marked tests, the Selection Board rejected the request based on the confidentiality of its work.
The complainant thus lodged a complaint with the Ombudsman , in which he claimed the following:
(1) in his opinion the Commission only verified the correspondence between the marks given by the evaluators and those communicated to him, instead of re-examining the content of his tests;
(2) the Commission did not provide him with more information on the evaluation criteria;
(3) the Commission breached the Code of Conduct annex to the Commission decision on public access to Commission documents (94/90/ECSC, EC, Euratom) by not giving him access to his marked tests.

THE INQUIRY

The Commission's opinion
The comments from the European Commission on the complaint are in summary the following:
As regards the corrections in the complainant's tests, the Commission stated that following a manual check, the Selection Board had confirmed that no error took place. The complainant had only reached 14,748 points in tests (b), (c) and (d). Not having met the minimum required, he was excluded from the competition and informed of the results by letter of the Chairman of the Selection Board. As set out in point V.B of the notice of competition, "pre-selection tests (a), (b), (c) and (d) will be marked first. Tests (e), (f) and (g) will be marked only in the case of the 100 candidates with the highest aggregate marks in tests (a), (b), (c) and (d). They must have obtained a minimum pass mark".
The Commission informed the complainant of the marks obtained in each test and how they had been calculated, as well as the evaluation criteria followed by the Selection Board. It also explained in detail the score system used in the different tests.
As regards the first pre-selection test which included a series of multiple-choice questions relating to the areas covered by the competition, answers were rated +1 in case of the correct answer, "0" in case of no answer or answer annulled, and - 0.333 in case of a wrong answer.
As for the second, third and fourth pre-selection test , answers were rated 0.333, 0.357 and 0.143 respectively for a right answer; - 0.111, - 0.119 and - 0.048 for a wrong answer, and "0" in case of no answer or answer annulled.
In the light of these criteria, the institution summarised the different scores obtained by the complainant in his tests, on the basis of his correct and wrong answers, as well as the questions with no response or those annulled.
In relation to the institution's refusal to give access to the marked exams, the Commission reiterated its position, and justified the refusal on the grounds of the confidentiality of the work of the Selection Board as set out in article 6 of Annex III of the Staff Regulation.
The complainant's observations
The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations.
As regards the request for the re-examination of his tests, the complainant underlined that the Selection Board had only checked the correspondence between the marks given by the evaluators and those which had been communicated to him, instead of carrying out a new correction of his tests.
Concerning the request to be informed on the evaluation criteria used by the Selection Board in the correction of the tests, the complainant welcomed the explanations given by the Commission. However, he added that the marks given by the Selection Board for right, wrong and annulled/no reply answers did not correspond with the information supplied to the candidates in the course of the tests. In support of this allegation, the complainant referred to the "Guide to candidates" distributed the day of the exam.
Prior to each test, candidates were provided with a booklet containing practical information (reference of the competition; contents of the tests, time allowed, scoring system for the answers) and the relevant questions. The cover page of each booklet indicated the scoring system for each type of answer : +1 for a right answer, - 0.333 for a wrong answer, and "0" for no answer or a cancelled one. The value given to each type of answers appeared then in contradiction with the information submitted by the Commission in its opinion.
The complainant also contested the Commission's point of view as regards the refusal to allow him access to his own marked papers because of the secrecy of the Selection Board's work. He agreed with the Commission that the work of the Selection Board be considered secret in the course of the corrections with a view to guaranteeing the independence and objectivity of its proceedings. By contrast, once the corrections have been made, there should not be any reason to refuse candidates access to theirs own marked papers.
The complainant alleged that the Commission had not assured the necessary transparency of its recruitment procedure, in breach of the Code of Conduct on public access to Commission documents. In his view, the marked paper of a candidate in an open competition does not fall under any of the exceptions provided for in the Code's general principle of "widest possible access to documents held by the Commission".
Finally, the complainant also stressed that in the letter of the Selection Board where it denied the access to a copy of his marked exam, there was no mention of any potential means to appeal against the Selection Board's negative decision. The Code, however, explicitly indicates that a decision of the Commission refusing access to certain documents "must indicated the means of redress that are available, i.e. judicial proceedings and complaints to the Ombudsman [...]".

FURTHER INQUIRIES

The Ombudsman asked the Commission for a second opinion on the complaint, by letter of 5 July 1999. The purpose of this letter was to give the European Commission the opportunity to comment on the complainant's grievance that the decision refusing him access his marked paper did not refer to the means of redress available, in breach of the Code of conduct annex to the Decision on public access. The Ombudsman also asked the Commission to give its opinion of the alleged discrepancy between the criteria followed by the Selection Board for the correction of the tests and the information supplied to candidates in the course of the exam.
As concerns the first point, the Commission simply replied that candidates who participate in an open competition are entitled, as all Union's citizens, to complain to the Ombudsman or to the judicial authorities against the decision to refuse them access to certain documents.
Regarding the criteria followed by the Selection Board for the correction of the tests, the institution replied that because the correction had been made by an optical reader, the complainant 's grievance on this point was not grounded.
Finally, as regards the access to the marked exam papers, the Commission maintained its original position.

THE DECISION

1 Re-assessment of the complainant's tests
1.1 The complainant asked the Selection Board to re-examine his test since there had been a minor difference between the threshold required to pass the first tests and the score he had been given.
1.2 The Commission stated in its opinion that in reply to this request, a second manual check of the complainant's exams had been carried out. The results of this second assessment showed that no error had occurred in the determination of the marks attributed to the complainant.
1.3 As established by Community case-law, in assessing the results of tests, Selection Boards enjoy a discretion, which can only be reviewed to ascertain whether its exercise has been vitiated by a manifest error or by a misuse of powers, or whether the Selection Board has manifestly exceeded the limits of its discretion (1).
In view of the information submitted by the complainant, the Ombudsman has found no evidence which might question the judgements made by the Selection Board. The Ombudsman has therefore concluded that the Selection Board acted within the limits of its legal authority. There appears to be no instance of maladministration as regards this aspect of the case.
2 Criteria used by the Selection Board for the selection of candidates
2.1 In response to the complainant's request, the Commission spelled out in its opinion the criteria used by the Selection Board for the evaluation of the tests. These criteria referred generally to the scoring methods applied to each type of reply (right/wrong answers, no answer/annulled) in every test.
2.2 Having compared these values with the score system referred to in the booklet distributed to all candidates in the course of the competition ("Guide to candidates"), the complainant noted that both criteria did not correspond.
2.3 Thus, the cover page of these booklet indicated that in the four tests the score system would be : +1 in case of a right answer, "0" in case of no answer or cancelled answer and - 0.333 in case of wrong answer.
By contrast, the Commission described in its opinion a different score system for each one of the tests. It appeared that only for the first tests answers had been rated +1 in case of right answer, "0" in case of no answer or cancelled answer and - 0.333 in case of wrong answer. As concerns the second, third and fourth pre-selection tests, answers had been rated 0.333, 0.357 and 0.143 for right answers; - 0.111, - 0.119 and - 0.048 for wrong answers and "0" in case of no answer or cancelled answer.
2.4 The essential function of the Guide distributed to candidates in the course of a competition is to give candidates accurate information about the content of the tests and their score. In the light of this information, candidates may decide beforehand how to handle the different tests and whether or not to reply to individual questions.
2.5 Principles of good administration require that the information that the Institution provides to citizens be clear and accurate.
This was not the case as regards the Guide distributed to candidates before the beginning of open competition COM/A/1049, since the information on the marking of tests contained therein did not correspond with the criteria used by the Selection Board in the marking of the first pre-selection tests. Candidates might have been confused by the information given to them before the exams regarding the real value to be attributed to each answer of the test.
2.6 In order to better clarify this aspect of the case, the Ombudsman requested a further opinion to the Commission. In its reply the institution only mentioned that because the correction had been made by an optical reader, the complainant's claim was not grounded. The Ombudsman considers, therefore, that the Commission had not properly replied to the point raised by the complainant.
Both the Commission's failure to provide candidates with clear and unambiguous information on the content of the tests and their score, and the fact that the institution did not provide a precise answer to the points raised by the complainant in his complaint, constitutes therefore an instance of maladministration.
3 Access to the complainant's exam papers
3.1 One of the complainant's claims regarded the Selection Board's refusal to allow him access to a marked copy of his exam.
3.2 The substantive question of access to marked exams, has been the subject of an own initiative inquiry launched by the European Ombudsman into the secrecy which forms part of the recruitment procedures of the Commission (own initiative 1004/97/PD) (2). As a result of this inquiry, the Ombudsman prepared a special report on the matter that has been sent to the European Parliament on 18 October 1999 and copy of which is enclosed with the present decision.
Thus, the Ombudsman therefore considers that it is not necessary to pursue the inquiry into this aspect of the case. The complainant will be informed by the Ombudsman of the outcome of this procedure.
4 Alleged breach of the Code of conduct on public access to Commission documents
4.1 The complainant claimed that the decision refusing him access to his marked papers did not refer to the means of redress available, namely judicial proceedings and complaints to the European Ombudsman, as laid out in the section on Processing of Confirmatory Application in the Commission Decision 94/90.
4.2 At the beginning this allegation was not part of the original complaint, but put forward in the complainant's observations of 20 April 1999. Furthermore, it is linked to the right to have access to the exam papers or not, which is still under investigation (see point 3 of the decision).
The Ombudsman therefore considers that it is not necessary to deal with this aspect of the case in this contest.
5 Conclusion
On the basis of the European Ombudsman's inquiries into the first aspect of this complaint, the Ombudsman considers it necessary to make the following critical remarks:

Principles of good administration require that the information that the administration provides to citizens be clear and accurate. More so, in the case of information distributed in the course of an open competition, which may be, for many citizens, their first encounter with the Community administration.

This was not the case as regards the Guide distributed to candidates before the beginning of open competition COM/A/1049, since the information on the marking of tests contained therein did not correspond with the criteria used by the Selection Board in the marking of the first pre-selection tests. Candidates might have been confused by the information given to them before the exams regarding the real value to be attributed to each answer of the test.

In order to better clarify this aspect of the case, the Ombudsman requested a further opinion to the Commission. In its reply the institution only mentioned that because the correction had been made by an optical reader, the complainant's claim was not grounded. The Ombudsman considers, therefore, that the Commission had not properly replied to the point raised by the complainant.

Both the Commission's failure to provide candidates with clear and unambiguous information on the content of the tests and their score and the fact that the institution did not provide a precise answer to the points raised by the complainant in his complaint, constitutes therefore an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.

FURTHER REMARKS

In its second opinion of 20 September 1999 on the complainant's observations of 20 April 1999, the Commission refrained from addressing the complainant's comments and the precise question that the Ombudsman asked to the institution in his letter of 5 July 1999.
As I have stated in the decision, this is an instance of maladministration. Furthermore, I would like to underline that, if this unfruitful attitude becomes a general rule in the performance of the newly installed Commission, it will rapidly destroy the achievements of a fruitful and constructive co-operation in our dealing with complaints and make the Ombudsman 's task of enhancing the relations between the European citizens and the Community institutions and bodies impossible.
The President of the European Commission will be also informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

---

(1) See, case T-46/93, Fotini Michäel-Chiou v. Commission [1994] ECR I-A-0297; par. 48; case 40/86, Georges Kolivas v. Commission [1987] ECR 2643; par. 11.

(2) As a result of the inquiry launched on this matter, the Ombudsman recommended that the Commission give applicants access to their own marked papers upon request.