(made in accordance with Art. 3 (7) of the Statute of the European Ombudsman[1])

Summary

The complaint concerned the European Parliament's refusal to inform the complainant, who took part in an open competition, of the names and marks of the successful candidates in the competition.

By decision dated 7 March 2002, the Ombudsman found no maladministration in the refusal to disclose to the complainant the marks of the successful candidates.

As regards the names of the successful candidates, the Ombudsman found that Parliament appeared to have acted within the notice of competition and pointed out that the complainant could apply for access to the reserve list under Regulation 1049/2001. The Ombudsman expressed no view as to whether such an application would be successful and no application appears to have been made.

The Ombudsman considered that Parliament's opinion on the complaint raised issues of general importance. According to Parliament, the notice of competition stated that the reserve list would be communicated to successful candidates and displayed on the notice boards of the institution. However, Parliament considered that to inform unsuccessful candidates about the reserve list would violate the Constitutions of Member States and the Charter of Fundamental Rights.

The Ombudsman did not find Parliament's position clear or convincing. He therefore made a draft recommendation that, in future competitions, Parliament should inform candidates in the notices of competition that the names of successful candidates will be made public.

Parliament's detailed opinion does not clearly accept the draft recommendation. Nor does the detailed opinion indicate that Parliament's future actions will treat candidates fairly and ensure consistency with its commitment to openness in the recruitment process. The Ombudsman therefore considers it his duty to make a Special Report on the matter.

The complaint

The complainant participated in Open Competition EUR/C/153/98 for Finnish language typists. On 7 November 2000, he was informed that he had not obtained sufficient marks for his name to be included in the reserve list since he was not amongst the 32 best candidates.

On 7 January 2001, the complainant wrote to the European Parliament asking what qualifications he was lacking, how many men were amongst the 32 best candidates and how many unemployed persons were included on the reserve list. On 24 January 2001, the Head of Unit of DG 5 replied to the first question by giving the complainant his own marks. As to the second question, the Head of Unit stated that male candidates were not discriminated against, since the reserve list reflects the number of male participants in Open Competition EUR/C/153/98. As regards the third question, the Head of Unit stated that he is not in a position to provide personal data of other participants and it would be contrary to the data protection rules.

On 15 February 2001, the complainant replied to the Head of Unit of DG 5 stating that he had not received answers to all his questions. He asked to be informed how many male candidates were amongst the 32 best candidates. Furthermore, he requested the names of the 32 candidates on the reserve list and their marks.

On 22 February 2001, the Head of Unit informed the complainant that 6,25 % of the candidates on the reserve list are male. The Head of Unit also underlined that the Parliament has to guarantee that the personal data of each candidate is protected.

On 7 March 2001, the complainant made a complaint to the Ombudsman. According to the complainant, the European Parliament wrongly refused to give the names of the 32 best candidates and their marks in Open Competition EUR/C/153/98.

The inquiry

The European Parliament's opinion

The European Parliament made, in summary, the following points:

According to the notice of competition (OJ C 61 A/14 of 3 March 1999, part VIII.2), successful candidates will be informed personally of the results and receive the list of successful candidates. In order to ensure openness, the list is sent to the successful candidates and there is also limited publication through display on the notice boards of the institution.

Unsuccessful applicants could not, however, be informed of the reserve list without violating the Constitutions of Member States and the rights of citizens under the Charter of Fundamental Rights of the European Union. The European Parliament is considering amending its practices as regards publishing information concerning candidates on a reserve list.

The opinion was forwarded to the complainant, who did not make any observations.

The draft recommendation

By decision dated 7 March 2002, the Ombudsman addressed a draft recommendation to the European Parliament in accordance with Article 3 (6) of the Statute of the Ombudsman. The basis of the draft recommendation was, in summary, as follows.

1 The complainant unsuccessfully participated in Open Competition EUR/C/153 for Finnish language typists. He claims that the European Parliament should provide him with the names of the 32 successful candidates on the reserve list in that competition.

2 The European Parliament replied that it could not provide the complainant with this information. According to the notice of competition, the successful candidates would be informed personally of the results and receive the list of successful candidates. There is also limited publication through display on the notice boards of the institution. Unsuccessful candidates could not, however, be informed of the reserve list without violating the Constitutions of Member States and the rights of citizens of the latter under the Charter of Fundamental Rights of the European Union. The European Parliament is considering amending its practices as regards publishing information concerning candidates on a reserve list.

3 The Ombudsman considers that Parliament appears to have acted within the notice of competition. However, the Ombudsman points out that the complainant has the possibility to make an application under Regulation 1049/2001 regarding public access to the European Parliament, Council and Commission Documents. In case the complainant is not satisfied with the outcome of his application, he has the possibility to present a new complaint to the Ombudsman.

4 The Ombudsman is not aware of any legal rule or principle that could prevent the European Parliament from announcing in notices of competition that the names of successful candidates will be made public. Furthermore, the adoption of such a practice would be in accordance with the general principle of openness to which the European Union is committed, as reflected in Article 1 of the Treaty on European Union, amongst other texts.

5 The Ombudsman recalls in this context that, in 1997, the European Commission agreed to publish names of successful candidates in future competitions. This undertaking was given as part of a friendly solution to complaint 16/17.1.95/GS/IT.

6 Furthermore, the Ombudsman recalls that in its resolution on the secrecy which forms part of the Commission's recruitment procedures[2] Parliament pointed out that the principle of openness must apply throughout the selection procedure.

7 In view of the above, the Ombudsman considers it to be inconsistent with Parliament's commitment to openness in the recruitment process for its administration to fail to announce, in notices of competition, that the names of successful candidates will be made public. In order to guarantee that the principle of openness will be applied in future competitions, the Ombudsman makes the following draft recommendation:

In future competitions, the European Parliament should inform candidates in the notices of competition that the names of successful candidates will be made public.

As regards the aspect of the complaint which concerns the marks of the other candidates, the Ombudsman's decision of 7 March 2002 found no maladministration by the European Parliament, for reasons explained in that decision.

The European Parliament's detailed opinion

In summary, the European Parliament's detailed opinion made the following points:

The name of a person, and thus the name of a person on a list of successful candidates, is private information which Parliament, under Regulation 45/2001, is required to process lawfully. The publication of the name of a successful candidate in a competition is therefore deemed, under Article 5 (d) of the aforementioned regulation, to be lawful only if the person in question has unambiguously given his or her consent to such publication.

Tacit consent is therefore not sufficient. Hence, participating in a competition whose notice states that the list of successful candidates will be published cannot be considered as being the unambiguous consent of the candidate to the publication of his or her name.

Moreover, it would be against Parliament's interest to ban those who refuse to give their explicit consent to such publication from taking part in competitions. In addition, such a ban would undoubtedly be condemned by the Court of First Instance and the Court of Justice as being contrary to a number of general principles of law (principle of equal treatment, principle of care, diligence and good governance, principle of proportionality).

It should also be noted that the general principle of openness must give precedence to the subjective right of an individual to protection of his or her private life and protection with regard to the processing of personal data. Furthermore, Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, which is a practical application of the principle of openness, expressly specifies in Article 4 (l) (b) that the principle of access to documents may not undermine the protection of privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

However, in the context of the establishment of the European Communities Personnel Selection Office, an agreement has been signed between the Secretaries General of the institutions, providing for the publication of lists of successful candidates in the Official Journal. The use of a different procedure by the European Parliament would be unwarranted, as most competitions will be organised by this Office. Parliament may therefore endorse the harmonisation of its practice of publishing lists of suitable candidates with the practice of the above-mentioned Office, whilst complying with the provisions of Regulation 45/2001, in particular as regards the clear and explicit authorisation of the successful candidates, which will take the form of a declaration on their application form concerning the fact that their names may be published.

The names of any successful candidates who have not signed the declaration in question may not be published.

For operational reasons, the new procedure can be applied only to open competitions published from September 2002.

The Ombudsman's evaluation of Parliament's detailed opinion

The Ombudsman's draft recommendation was intended to guarantee that the principle of openness would be applied in future competitions. This would promote two objectives: fair treatment of candidates, by informing them in advance of the conditions of their participation in the competition, as well as consistency between the European Parliament's public commitments and its actions as regards openness in recruitment.

The Ombudsman regrets that the European Parliament's detailed opinion does not allow the conclusion that either objective has been achieved.

The Ombudsman recalls that the European Parliament's opinion stated that it both provides successful candidates with a copy of the reserve list and also publishes the reserve list on the notice boards of the institution. In its detailed opinion, the European Parliament has not indicated any change in this practice. The Ombudsman points out that the notice boards can be inspected by anyone who has access to Parliament's premises, including visitors. In these circumstances, the Ombudsman cannot understand why Parliament objects to announcing in future competitions that the reserve list will be published since, on the basis of the information supplied by Parliament, this appears to be its current practice.

Moreover, the Ombudsman considers that the European Parliament's detailed opinion contains a misunderstanding of data protection in Community law. The Ombudsman points out that according to Article 4 of Regulation 45/2001, personal data must be processed fairly and lawfully. The Ombudsman also points out that Article 5 of Regulation 45/2001 contains a number of alternative conditions for the lawful processing of personal data, the first of which is, in part:

"processing is necessary for the performance of a task carried out in the public interest on the basis of the Treaties establishing the European Communities or other legal instruments adopted on the basis thereof or in the legitimate exercise of official authority vested in the Community institution or body ..."

The European Parliament is an institution under the Staff Regulations and has legal authority to draw up notices of competition. Moreover, Parliament has committed itself to openness in recruitment and publishing the names of successful candidates is a significant contribution to such openness. The Ombudsman therefore considers that it would be a legitimate exercise of official authority for the European Parliament to decide that the names of successful candidates in competitions will be published and that candidates will be informed accordingly in the notice of competition. If such a decision were made, its implementation would ensure that the relevant personal data is processed fairly, as well as lawfully.

The Ombudsman points out in this context that he understands that the practice of the Commission is to publish the names of successful candidates in the Official Journal.

For the above reasons, the Ombudsman makes the following recommendation:

The Ombudsman's recommendation

In future competitions, the European Parliament should publish the names of successful candidates and inform candidates accordingly in the notices of competition.

The European Parliament could consider adopting the recommendation as a resolution.

Strasbourg, 5.12.2002

Jacob SÖDERMAN

 

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[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 113/15

[2] European Parliament resolution on the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures (C5-0082/2000 - 2000/2048 (COS)), 17 November 2000. This resolution is based on the Bösch Report on the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures, 12 October 2000, FINAL A5-0280/2000.