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Draft recommendation to the European Personnel Selection Office in complaint 2097/2003/(ADB)PB

(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The complainant participated in competition COM/C/2/02, held to establish a reserve list of German-speaking typists. The typing test and the oral test, respectively test (f) and (g), were carried out one after the other on the same day. The complainant obtained 8 points in test (f) and thereby failed to reach the pass mark, which was 10. On 30 July 2003, the complainant therefore wrote to the Commission to ask for clarifications regarding her mark and a review of the test. She asked for an explanation of the selection criteria and for a copy of her examination paper.

On 16 October 2003, the European Personnel Selection Office (EPSO) sent the complainant a copy of the evaluation sheet for her test and informed her that her test had been assessed as to completeness, layout, formatting and typing errors. EPSO however informed the complainant that it could neither disclose the examination paper nor the criteria used by the Selection Board to mark the test. EPSO argued that according to the notice of competition the typing test was part of the oral test and was therefore covered by the duty to keep the proceedings of the Selection Board confidential, as required by article 6 of Annex III of the Staff Regulations. According to EPSO, this principle had been confirmed by the European Ombudsman in his decision 481/2001/IP. Finally, EPSO informed the complainant that about 75% of the candidates had obtained at least the pass mark in test (f).

The complainant was dissatisfied with EPSO's answer and therefore lodged a complaint with the European Ombudsman. She alleged, in summary, that EPSO had failed to give her access to a copy of her examination paper and to inform her about the criteria used to mark the test. She claimed that she should be given access to a copy of her corrected examination paper and be informed of the criteria used to mark the test. She referred to the Ombudsman's draft recommendation in 2097/2002/GG(2) and stated that she wanted access so as to be able to improve her performance in future recruitment competitions.

THE INQUIRY

The complaint was sent to EPSO for opinion. The opinion that the Ombudsman received was however written by the European Commission.

The Commission's opinion

The Commission noted that the complainant had been sent the evaluation sheet, which indicated that the complainant's test had been deemed insufficient in respect of layout, formatting and typing.

With regard to the complainant's request for access to a copy of her marked examination paper and the evaluation criteria ("critères de correction"), the Commission stated that those documents form an integral part of the oral examination, and that they are therefore covered by the secrecy referred to in Article 6 Annex III of the Staff Regulations. Moreover, reference was made to the European Ombudsman's decision in case 481/2001/IP, in which, according to the Commission, this secrecy requirement had been confirmed.

The Commission noted the complainant's reference to the European Ombudsman's draft recommendation in 2097/2002/GG, and remarked that the complainant had received the evaluation sheet for her practical examination as well as the comments of the selection board. According to the Commission, the evaluation sheet contained all the explanations regarding the errors committed, thus enabling the complainant to avoid such errors in the future.

The Commission stated that two points should be noted:

(i) The practical examination took place the same day as the oral examination, for which reason the deliberations were covered by the secrecy appertaining to the selection boards;

(ii) Moreover, the correction of the practical examination had been made directly on the original examination script. The corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself.

According to the Commission, it was established case-law that the duty to give reasons does not imply that copies of the examination paper containing the selection board's corrections should be communicated to the applicants. The Commission referred to the Court's decision in the Innamorati case(3).

As regards the Ombudsman's draft recommendation in case 2097/2002/GG, the Commission stated that the complainant had failed to mention that the Commission had already committed itself to a practice of access to examination papers applicable to recruitment competitions organised after 1 July 2000. According to the Commission, this practice consisted of separating the individual evaluation sheets, on which each individual evaluator puts his or her marks, from the final evaluation sheet adopted by the selection board, and to give applicants (who so request) access to the latter. This practice had, according to the Commission, been respected in the present case.

The complainant's observations

The Commission's opinion was forwarded to the complainant, from whom the Ombudsman received no observations.

THE DECISION

1 Introductory remarks

The complaint concerns a refusal of the European Personnel Selection Office (EPSO) to provide access to documents and information. The complaint was therefore sent to EPSO for opinion. The opinion was submitted by the European Commission, i.e. the Community institution originally responsible for the competition here concerned. The Ombudsman considers it appropriate to continue the inquiry on the basis of the Commission's opinion, and the complainant has not objected to this. However, in the light of the fact that it was EPSO that refused the complainant access in the first place, and the fact that EPSO is now the main body for the organisation of recruitment competitions, the Ombudsman considers that EPSO remains the relevant addressee of the findings and the draft recommendation in the present case.

2 Alleged failure to give access to examination paper

2.1 The complainant participated in competition COM/2/02, organised to establish a reserve list for typists, in which she failed to obtain sufficient marks to pass the practical test. The complainant asked the organiser of the competition, the European Commission, to provide her with the evaluation criteria and a copy of her examination paper. She received a reply from the newly established European Personnel Selection Office (ESPSO), which gave her a copy of the selection board's final evaluation sheet but refused her access to a copy of her examination paper and information on the evaluation criteria.

2.2 The complainant alleged that EPSO had failed to give her access to her examination paper.

2.3 The Commission stated that the complainant could not be given a copy of her examination paper containing the written marks and comments of the evaluators.

2.4 The Commission referred to Article 6, Annex III, of the Staff Regulations, which establishes the secret nature of the work of the selection board, and to the decision of the Court in the Innamorati case(4). The Commission furthermore indicated that since the practical typing test had been organised the same day as the oral examination, the former was part of the oral examination and therefore the complainant could not receive a copy of her examination paper. The Commission referred to the European Ombudsman's decision on complaint 481/2001 in support of its proposition.

2.5 The Commission furthermore stated that its practice on access to competition documents implied that access is given - as in this case - to the final evaluation sheet.

2.6 It first has to be noted that the Ombudsman's decision on complaint 481/2001/IP accepted that access to the minutes of the oral examination could be refused in that case. The present case does not, however, concern minutes of an oral examination, but a copy of a written examination paper. The fact that the practical test and the oral examination were held on the same day does not show that they were inseparable. Part B. of the notice of competition describes the practical test and the oral examination as two separate evaluation phases ( 'f' and 'b') with separate contents and marking methods.

2.7 With regard to the Commission's commitment to provide access to competition documents, the Ombudsman notes that this commitment was formulated as follows: "The Commission welcomes the recommendation you made ... and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination paper, upon request, from 1 July 2000 onwards" (letter from Commission President Prodi to the Ombudsman, dated 7 December 1999). The Ombudsman has subsequently dealt with cases where applicants appear to have received copies of their examination papers as a matter of routine application of the Commission's new rules(5).

2.8 In the present case, the Commission has put forward that the correction of the practical examination had been made directly on the original examination script, and that the corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself.

2.9 The Ombudsman notes that the competition here concerned was organised two years after the Commission began to give applicants access to their examination papers. The responsibility for adopting the necessary arrangements to ensure that such access can be given lies with the Commission. This implies a duty to take corrective measures when such arrangements have not been adopted. In the present case, the practical circumstance referred to by the Commission as a reason for not providing access should not have prevented it from taking measures to ensure that its above commitment could be respected.

2.10 On the basis of the above findings, the Ombudsman considers that the Commission has failed to justify why the applicant was not given a copy of her examination paper in accordance with the Commission's commitment to give applicants access to their marked examination papers. This constitutes an instance of maladministration, and the Ombudsman therefore makes the draft recommendation below.

3 Alleged failure to inform the complainant about the evaluation criteria

3.1 The complainant alleged that EPSO failed to inform her about the criteria used to mark the test. She claimed that she should be informed of the criteria used to mark the test, and referred to the Ombudsman's draft recommendation in 2097/2002/GG. She stated that she wanted access so as to be able to improve her performance in future recruitment competitions.

3.2 The Commission stated that the evaluation criteria formed an integral part of the oral examination, and were therefore covered by the secrecy referred to in Article 6 Annex III of the Staff Regulations. The Commission also stated that it was established case-law that the duty to give reasons for recruitment decisions was satisfied by communicating the number of marks to the applicant in question. The Commission referred to the Court's decision in the Innamorati case (1996)(6).

3.3 The Ombudsman has already examined the issue of access to evaluation criteria in his draft recommendation in complaint 2028/2003/(MF)PB, submitted to EPSO on 7 October 2004 (still pending). In that case, EPSO and the Commission had taken the view that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(7). In his draft recommendation, the Ombudsman made the following comments:

"As regards the Commission's view that it had to refuse access in the light of the Innamorati case, the Ombudsman considers it useful to quote the following paragraphs of the judgement:

'29 The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates' respective merits. They are designed to guarantee, in the candidates' own interests, a certain consistency in the board's assessments, especially where there is a large number of candidates. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments.

30 The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them.

31 Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based.' (Emphasis added.)

It is clear from the above that the Innamorati case only concerned the duty to state reasons for individual decisions taken specifically in the context of recruitment competitions. The decision in the Innamorati case does not, therefore, concern the issue of access to documents. In the Ombudsman's view, the decision in the Innamorati case cannot therefore be invoked as a legal precedent obliging the institutions to keep selection criteria secret under Regulation 1049/2001.

The Ombudsman notes that recent decisions of the Court of First Instance appear to support this finding. In the Pyres case(8) and the Alexandratos and Panagiotou case(9), the Court of First Instance found that although the communication of the mark obtained by candidates in the various tests constitutes an adequate statement of the reasons on which the selection board's decision is based, this does not imply that a candidate who so requests cannot be informed about the selection board's selection criteria.

The Ombudsman furthermore notes that to allow access to selection criteria appears to be consistent with the European Union's policy and legislation on transparency and public access to documents, which have developed significantly since the Court's decision in the Innamorati case in 1996.

In 1997, the Treaty of Amsterdam amended the Treaty on European Union, inserting the following principle into Article 1 of the Common Provisions of that Treaty:

'This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.' (Emphases added.)

The Treaty of Amsterdam also inserted Article 255 into the Treaty establishing the European Communities. Article 255 of the Treaty provides that:

'Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined ...'.

Article 255(2) provides that 'General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.'

On the basis of this provision, the Council and the Parliament adopted Regulation 1049/2001 regarding public access on 30 May 2001(10).

The preamble of Regulation 1049/2001 confirms that 'openness ... guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system' (recital 2, emphases added), and that 'in principle, all documents of the institutions should be accessible to the public' (recital 11). Article 1(b) expressly provides that Regulation 1049/2001 is intended to 'establish rules ensuring the easiest possible exercise of this right'.

In the light of the above, the Ombudsman considers that EPSO and the Commission were wrong to consider that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001. EPSO and the Commission therefore failed to give adequate reasons for refusing access. This constitutes an instance of maladministration, and the Ombudsman therefore makes the draft recommendation below.

The Ombudsman furthermore wishes to add that the exception contained in Article 4(3)(ii) does not appear to apply to the kind of document here concerned. Article 4(3)(ii) applies to 'documents containing opinions'. In the Ombudsman's view, a document containing selection criteria cannot be considered a 'document containing opinions'(11)."

3.4 On the basis of the above findings, the Ombudsman made the following draft recommendation:

"EPSO should reconsider its refusal to provide the complainant access to the selection criteria established by the selection board, and give access unless valid grounds prevent their disclosure under any of the exceptions in Regulation 1049/2001 regarding European Parliament, Council and Commission documents."

3.5 In the present case, the Ombudsman notes that no express reference has been made to Regulation 1049/2001 regarding access to documents. However, it also appears that neither the complainant nor the Commission addressed the present dispute solely in the light of the duty to state reasons. The complainant made express reference to the Ombudsman's draft recommendation 2097/2002/GG, which was in part based on the Union's developments towards greater transparency, in particular the obligation to take decisions as openly as possible (paragraph 1.4 of the draft recommendation). The Commission, for its part, referred to its new openness practice related to recruitment competitions, which does not appear to have been introduced as a matter of extended interpretation of the duty to give reasons.

3.6 The Ombudsman therefore considers that the findings in his draft recommendation to EPSO in the case referred to above are equally relevant and applicable to the present case.

3.7 On the basis of the above findings, the Ombudsman considers that the reasons for not informing the complainant of the evaluation criteria were inadequate. This constitutes an instance of maladministration, and the Ombudsman therefore makes the draft recommendation below.

4 Conclusion

In view of the above, the Ombudsman makes the following draft recommendations to EPSO, in accordance with Article 3 (6) of the Statute of the Ombudsman:

1. EPSO should provide the complainant with a copy of her written examination paper.

2. EPSO should furthermore reconsider its refusal to give the complainant access to the evaluation criteria, and give access unless valid grounds prevent their disclosure.

EPSO and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, EPSO shall send a detailed opinion by 31 January 2005. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 25 October 2004

 

P. Nikiforos DIAMANDOUROS


(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) The Ombudsman's draft recommendation in that case was that "The Council of the European Union should allow the complainant to have access to her own marked examination paper."

(3) Case C-254/95 P Innamorati [1996] ECR I-3423.

(4) Case C-254/95 P Innamorati [1996] ECR I-3423.

(5) Decision on complaint 324/2003/MF and Draft Recommendation 2028/2003/(MF)PB.

(6) Case C-254/95 P Innamorati [1996] ECR I-3423.

(7) Official Journal 2001 L 145, p. 43.

(8) Case T-72/01, Pyres, judgement of 25 June 2003, paragraphs 70 - 71.

(9) Case T-233/02, Alexandratos and Panagiotou, judgement of 17 September 2003, paragraph 31.

(10) Official Journal 2001 L 145, p. 43.

(11) Other language versions of Regulation 1049/2001 appear to support the Ombudsman's finding, for instance "des avis" (French), "Stellungnahme" (German), "yttranden" (Swedish), "meningstilkendegivelser" (Danish), "opiniones" (Spanish), "riflessioni" (Italian).