Strasbourg, 26 January 2005

Dear Ms P.,

On 12 February 2004, you made a complaint to the European Ombudsman concerning competition A/393 in 2001. On 5 March 2004, you sent me additional information and comments.

On 31 March 2004, I forwarded the complaint to the Secretary-General of the Council of the European Union. The Council sent its opinion on 7 July 2004. I forwarded it to you with an invitation to make observations, which you sent on 24 August 2004.

On 15 November 2004, you sent me a letter in which you asked me about the state of my inquiry. I replied by letter dated 23 November 2004, informing you that I expected to be able to take a decision on your complaint by the end of January 2005.

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

THE COMPLAINT

The complaint was submitted by a person who had participated in recruitment competition A/393 in 2001. The competition was organised by the Council of the European Union to establish a reserve list of Greek language administrators.

The complaint was related to a previous complaint by the same complainant: 1495/2002/(OV)(VK)(ADB)PB. That complaint concerned the Council's decision not to invite the complainant to the oral test in the selection procedure. Two of the complainant's claims were: (1) access to a copy of her written examination paper, and (2) access to the evaluation criteria of the Council's selection board. As regards (1), she was given a copy of her written examination paper; as regards (2), she was informed that no evaluation criteria had been established in addition to the ones contained in the notice of competition published in the Official Journal. In his decision of 16 February 2004, the Ombudsman concluded that there was no maladministration.

On 22 December 2003, the complainant made a new request directly to the Council, asking for the corrections related to her examination paper (i.e. in addition to the copy of her unmarked examination paper). On 11 February 2004, the Council sent the complainant a reply. In its reply, the Council stated that it had informed the Ombudsman in the previous inquiry 1495/2002/(OV)(VK)(ADB)PB that it would send her a copy of her examination paper. As regards the issue of more detailed evaluation documents used by the selection board, the Council's letter to the complainant informed the complainant that the evaluation criteria set out in the notice of competition had been applied.

The complainant put forward the following allegations in the present complaint to the Ombudsman:

(1) The Council had wrongly refused her access to the corrections related to her examination paper.

(2) The Council had wrongly refused her access to the documents used by the selection board in its assessment of the examination paper, such as check-lists.

(3) The Council had failed to respect the deadlines for responding to her complaints.

The complainant argued that other institutions apply more transparent practices.

The complainant claimed access to the documents referred to in her allegations.

THE INQUIRY

The Council's opinion

The complaint was sent to the Council, which made, in summary, the following comments:

1. Access to corrections

The Council first noted that during the Ombudsman's inquiry into the complainant's previous complaint (1495/2002/(OV)(VK)(ADB)PB), it set up new rules related to all its external and internal competitions published as of 1 September 2003. Candidates participating in competitions published before that date, which was the case of the complainant, could on their request obtain a copy of their own examination paper and of the final evaluation sheet, where the selection board had drawn up such a sheet. In the present case, no final evaluation sheet had been drawn up by the selection board.

As regards the examination paper, the Council noted that neither the Staff Regulations nor the general principles applicable to the tasks of a selection board obliged it to annotate the copies it marks, make corrections on the test or write down its marking on the copy itself.

As for the assessments made individually by the independent evaluators, the Council stated that with a view to guaranteeing the secrecy of the proceedings, candidates cannot obtain a copy of the individual assessments of the evaluators and the selection board does not communicate under any circumstances the personal opinion of the evaluators. This approach, it noted, was also followed by the European Personnel Selection Office (EPSO), and reflected the obligations imposed by the Staff Regulations, according to which “the proceedings of the Selection Board shall be secret”, as well as established case-law of the European Court of Justice.

The Council therefore considered that the complainant's first allegation was unfounded.

2. Access to the check- list

The Council stated that the selection board did not draw up a check-list for the English test, since it did not consider it useful for a test of this nature. The Council noted that there was no legal obligation for the Selection Board to draw up check-lists for the written or the oral examinations. Therefore, no access could be provided to a check-list concerning the English test.

3. Respect for deadlines

The answer to the complainant's letter of 22 December 2003 was sent to her by registered mail on 11 February 2004. She received it on 17 February 2004. In her letter of 5 March 2004 addressed to the Ombudsman, the complainant did not repeat her allegation that the Council had failed to respect the deadlines for responding to her complaints. The Council therefore concluded that this misunderstanding due to the crossing of the Council's outgoing mail of 11 February 2004 and the complainant's complaint to the Ombudsman of 12 February 2004 was resolved.

The complainant's observations

The Council's opinion was forwarded to the complainant for observations. In her observations, the complainant made additional remarks on the evaluation of her examination paper and asked the Ombudsman whether it would be possible to obtain the opinion of an independent evaluator on her examination paper. She also elaborated on her argument that other Community institutions had more transparent practices than the Council. The complainant did not address the Council's remark that the issue relating to an alleged delay in responding to her complaints had been resolved.

THE DECISION

1 Introductory remarks

1.1 The case concerned requests for information and documents to the Council by an unsuccessful applicant in recruitment competition A/393.

1.2 In her observations, the complainant asked the Ombudsman whether it would be possible to obtain an independent evaluation of her examination paper.

1.3 While not excluding that the Ombudsman could, in the appropriate circumstances, recommend to an institution that an examination paper should be independently evaluated, the Ombudsman does not consider that the complainant has submitted evidence or arguments that would make it necessary to proceed to obtaining such an independent evaluation in this case. In this context, the Ombudsman finds it relevant to refer to the fact that he found no maladministration in respect of the selection board's assessment methods in his decision on the complainant's previous complaint 1495/20022/(OV)(VK)(ADB)PB, which concerned the evaluation of the complainant's examination paper.

2 Alleged failure to provide access to corrections

2.1 The complainant alleged that the Council had wrongly refused her access to the corrections related to her examination paper.

2.2 In its opinion, the Council first noted that it had set up new rules related to all its external and internal competitions published as of 1 September 2003. Candidates participating in competitions published before that date, which was the case of the complainant, could on their request obtain a copy of their own examination paper and of the final evaluation sheet, where the selection board had drawn up such a sheet. In the present case, however, no final evaluation sheet had been drawn up by the selection board. As regards the examination paper, the Council noted that neither the Staff Regulations nor the general principles applicable to the tasks of a selection board obliged it to annotate the copies it marks, make corrections on the test or write down its marking on the copy itself. As for the assessments made individually by the independent evaluators, the Council stated that with a view to guaranteeing the secrecy of the proceedings, candidates cannot obtain a copy of the individual assessments of the evaluators and the selection board does not communicate under any circumstances the personal opinion of the evaluators. This approach, it noted, was also followed by the European Personnel Selection Office (EPSO), and corresponded not only to the rules in the Staff Regulations according to which “the proceedings of the Selection Board shall be secret” but also to well established case-law by the European Court of Justice.

2.3 The Ombudsman notes that the Council has introduced new rules according to which candidates in recruitment competitions can request a copy of their own examination paper and of the final evaluation sheet drawn up by the selection board. These rules are similar to those adopted by other institutions following recommendations by the Ombudsman, and are also followed by the European Personnel Selection Office. Because each examination paper is normally copied and distributed to several independent evaluators, there is usually no examination paper available containing correction marks of the selection board. In his decisions on previous complaints where the complainants had received unmarked copies of their examination papers together with clear and consistent evaluation sheets, the Ombudsman found that the institution concerned had respected the rules described above(1). In the present case, the selection board had not drawn up a final evaluation sheet, access to which could therefore not be given.

2.4 As regards the individual assessments made by the independent evaluators, the Council stated that with a view to guaranteeing the secrecy of the proceedings, candidates cannot obtain a copy of the individual assessments of the evaluators.

2.5 In the Ombudsman's view, it appears consistent with the secrecy pertaining to the selection board's proceedings that access is, as a general rule, not given to the individual assessments of the evaluators.

2.6 In the light of the above, the Ombudsman considers that there has been no maladministration on the part of the Council with regard to this part of the complaint.

3 Failure to give access to check-lists

3.1 The complainant alleged that the Council had wrongly refused her access to the documents used by the selection board in its assessment of the examination paper, such as check-lists.

3.2 In its opinion, the Council stated that the selection board did not draw up a check-list for the test, and that no access could therefore be given to such a list.

3.3 The Council's statement that no check-list had been drawn up by the selection board, and that access could therefore not be given to such a list, has not been contested by the complainant. It appears, therefore, that there has been no maladministration by the Council with regard to this part of the complaint.

4 Alleged failure to respect the deadlines for responding to complaints

4.1 The complainant alleged that the Council had failed to respect the deadlines for responding to her complaints.

4.2 In its opinion, the Council stated that its answer to the complainant's letter of 22 December 2003 was sent to her by registered mail on 11 February 2004 and that in her letter of 5 March 2004 addressed to the Ombudsman, the complainant did not repeat her allegation. The Council therefore concluded that this misunderstanding which had been due to the crossing of the Council's outgoing mail of 11 February 2004 and the complainant's complaint to the Ombudsman of 12 February 2004 was resolved.

4.3 The Ombudsman notes that the Council had sent its reply to the complainant's letter one day before she submitted the present complaint. In her observations on the Council's opinion, the complainant did not reject, or otherwise address, the Council's view that the issue relating to the present allegation was resolved. The Ombudsman therefore considers that it is not necessary to inquire further into this aspect of the complaint.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Council of the European Union in respect of the complainant's first and second allegations. As regards the complainant's third allegation, the Ombudsman has found that it is not necessary to inquire further into this aspect of the complaint. The Ombudsman therefore closes the case.

The Secretary-General of the Council of the European Union will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See for instance 324/2003/MF.