Strasbourg, 9 April 2008

Dear Mr X,

On 1 January 2007, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your participation in Open Competition AD/46/06.

On 21 March 2007, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 10 July 2007 and I forwarded it to you with an invitation to make observations, if you so wished. No observations have been received from you.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

On 25 October 2006, the complainant sat two admission tests for Open Competition AD/46/06: (i) EU questions and (ii) verbal and numerical reasoning. On 26 October 2006, he informed EPSO that he had discovered a number of mistakes in various questions formulated for test (b). He pointed out that he had lost a significant amount of time trying to understand what to do with these allegedly wrong questions, and wanted to know how to proceed.

On 14 December 2006, EPSO informed the complainant that it had annulled one of the 30 questions because the question concerned did in fact contain errors. The assessment of the tests had, EPSO stated, been made on the basis of the candidates' replies to the remaining 29 questions.

On 15 December 2006, the complainant was informed of his result. On the basis of the points that he had obtained, he had not passed test (b). He contested this in an e-mail to EPSO sent on that same date. He stated, inter alia, that

1. he would like to have a copy of the questions that he had replied to in test (b);
2. he had spent, and lost, a considerable amount of time trying to answer the question which was ultimately annulled, that is, a question that the candidates should not have spent time considering; he pointed out that, whereas he had received the annulled question first, other candidates had received it as the last question, and this, in the circumstances concerned, clearly made a difference.

On 20 December 2006, EPSO informed the complainant that he would receive a reply to his e-mail in January 2007.

On 20 February 2007, that is, subsequent to his submission of the present complaint, the complainant sent the European Ombudsman a copy of a reply that EPSO had sent to him. The e-mail contained, in summary, a confirmation of the information that EPSO had previously given to the complainant, and specifically the information that (i) according to the case-law, each candidate is responsible for his or her time management, which responded to the complainant's point 2 above, and (ii) it was not possible to provide him with the questions to which he had replied. All the questions that the complainant had answered were taken from a database, which had been developed by EPSO. This database contains a very high number of questions, which are grouped according to theme and level of difficulty. The database is also used for other recruitment competitions, and EPSO cannot, therefore, disclose the questions without undermining the decision-making process of the selection boards.

In an e-mail of 20 February 2007 to the Ombudsman, the complainant stated that he merely wanted access to the specific questions that he himself had replied to and not to all the questions of the above-mentioned database.

In light of the above, the Ombudsman opened his present inquiry into the following allegations and claims made by the complainant:

Allegations:

(1) EPSO failed to provide valid and adequate grounds for refusing to give the complainant a copy of the 30 questions that he was asked to reply to in the admission test. He argues that he should be given a copy of these questions in order to be able to check and challenge the correctness and adequacy of these questions.

(2) EPSO has failed to deal properly with the matter the complainant raised about the time he lost during the test due to the wrong question. In this regard, he argues that whereas he had received the annulled question first, other candidates had received it as the last question, and that this, in the circumstances concerned, clearly made a difference.

Claims:

(1) EPSO should give the complainant a copy of the thirty questions that he was asked to reply to in the admission test.

(2) EPSO should take appropriate action in response to the matter referred to in the complainant's first allegation.

THE INQUIRY

EPSO's opinion

EPSO submitted, in summary, the following comments on the complainant's allegations.

The refusal to grant access to the 30 questions for test (b)

EPSO maintained its refusal to give the complainant the 30 questions that he had replied to in the test. It noted (i) that there are limits to the right of public access to documents for reasons of public interest, with a view to safeguarding the object of a better selection of staff for the European institutions, as foreseen by Regulation 1049/2001(1); (ii) the right of public access to documents is limited or excluded, according to the principle that a more specific law takes precedence over a general law (lex specialis derogat legi generali(2)); (iii) at any rate, the questionnaire to which the candidate has to respond cannot be disclosed without undermining the process related to the selection procedure within the meaning of Article 4(3), first indent, of Regulation 1049/2001; any disclosure, based on Regulation 1049/2001, of the content of the database or parts thereof, would have the consequence of putting future candidates who had obtained such disclosure at an advantage; and this would interfere with the proceedings related to the competitions to be held later on, and would thus undermine the equal treatment of the candidates and the competition procedures; (iv) Article 4(3), first indent, of Regulation 1049/2001 provides that access to a document is refused "unless there is an overriding public interest in disclosure". However, in the present case the interest at stake is clearly a private one, and it is manifestly in the public interest to guarantee the objectivity of the selection process of staff for the European institutions and the equality of opportunities between candidates.

EPSO also emphasised that it is settled case-law of the Community Courts that the communication of the mark satisfies the obligation to state reasons for the decision to reject a candidate. In the present case, the complainant had been informed of the mark that he had obtained in the two tests, as well as the reason(s) why he was excluded from further participation.

The time spent on the questions

As regards the annulment of test questions, EPSO referred to the relevant case-law(3). The time that a candidate spends on questions that may subsequently be annulled depends on the behaviour of the individual candidates, thus emphasising the existence of differences between the candidates who participate in a competition. However, the annulment of a test question does not constitute a breach of the principle of equal treatment, an irregularity in the competition, or an inequality in the assessment of the different candidates.

EPSO also pointed out that, in practice, a candidate did not have the obligation to reply to the questions in the order in which they appeared on the computer screen. A candidate could always return to questions that he or she considered difficult or complex.

Furthermore, the time spent by the complainant on the different questions of the test varied between 43 and 205 seconds. More precisely, he spent between 43 and 189 seconds on the questions testing verbal reasoning skills, and between 70 and 205 seconds on the questions testing numerical reasoning skills. He had spent 153 seconds on the question that was annulled without giving any reply.

EPSO thus notes that the complainant had the time to read and to reply to all the questions and that the time spent on the question concerned was not disproportionate compared to the time that he spent on other questions.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Access to questions put to the complainant in the admission test

1.1 The European Ombudsman notes that the complainant's second allegation concerning access to the questions that he was asked to reply to in the admission test, and the related claim, essentially raises an issue that has also been examined by the Ombudsman in cases 2626/2006/MHZ, 3746/2006/MHZ, 370/2007/MHZ, and 3819/2006/DK. In those cases, EPSO, in essence, invoked the same arguments in support of its challenged refusals to grant access. In his decisions on these complaints(4), the Ombudsman found that EPSO had failed adequately to justify its contested refusal and that this constituted an instance of maladministration. This finding is also made mutatis mutandis in the present case.

1.2 In his above-mentioned decisions, the Ombudsman also noted that he was already dealing with a considerable number of similar complaints in relation to which EPSO had adopted, in essence, the same position and supporting argumentation. In these circumstances, he considered it appropriate to launch an own-initiative inquiry into the overall structure of the computer-based testing (CBT) in competitions organised by EPSO. The own-initiative inquiry should provide EPSO with an opportunity to review its policies on the matter and search for ways to address the problems identified by the Ombudsman and, more broadly, to achieve an equitable solution.

1.3 In light of the above, and the findings in point 2.4 below, the Ombudsman will close the present case by referring to his critical remark in case 370/2007/MHZ(5). The Ombudsman will, in due course, also inform the concerned complainants, including the complainant in the present case, of the outcome of his above-mentioned own-initiative inquiry.

2 Alleged failure to deal with the issue of lost time

2.1 The complainant alleged that EPSO had failed to deal properly with the matter that he had raised about the time he lost during the test due to the wrong question. In this regard, he argued that, whereas he had received the annulled question first, other candidates had received it as the last question, and that this, in the circumstances concerned, clearly made a difference.

2.2 EPSO rejected this allegation, referring to the Court of First Instance's decision in Case T-189/99 Gerichrostos. In that case, the Court held that the argument, according to which the annulment of certain questions amounts to a violation of the principle of equal treatment because the candidates spent different amounts of time on the questions concerned, was based on an erroneous understanding of that principle. In fact, this argument relates to neither an irregularity in the conditions applicable to the candidates in the competition, nor any unequal treatment in the Selection Board's evaluation of the individual candidates, but instead concerns the individual behaviour of the candidates themselves. Rather than demonstrating discrimination, the argument emphasises the fact that there are differences between the candidates participating in a competition(6).

2.3 The Ombudsman has received no observations on EPSO's opinion.

2.4 In light of the above-mentioned case-law referred to by EPSO, the Ombudsman finds that the complainant's allegation here concerned cannot be sustained. The Ombudsman therefore finds no instance of maladministration with respect to the complainant's second allegation(7).

3 Conclusion

For the reasons explained in point 1.3 of the present decision above, the Ombudsman considers that no further inquiries into the present complaint are justified. The Ombudsman refers, however, to his critical remark in case 370/2007/MHZ, pointing out that EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers and that this constitutes an instance of maladministration. For the remainder of the present case, the Ombudsman finds no maladministration.

The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43; EPSO referred to Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429.

(2) Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957; Case T-376/03 Hendrickx v Council [2005] ECR-SC I-A-83 and II-379; and Case T-53/00 Angioli [2003] ECR-SC I-A-13 and II-73, paragraph 83.

(3) Case T-189/99 Gerochristos v Commission [2001] ECR-SC I-A-11 and II-53 (paragraphs 25-26). In this regard, see the decision part below.

(4) These decisions may be found on the Ombudsman's website (http://www.ombudsman.europa.eu).

(5) "EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers. This is an instance of maladministration."

(6) Case T-189/99 Gerochristos v Commission [2001] ECR-SC I-A-11 and II-53, paragraphs 25-26.

(7) The Ombudsman therefore does not examine any further the related claim.