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

(1999/C 371/09)

In November 1997, the European Ombudsman began an own-initiative inquiry concerning the secrecy which forms part of the Commission's recruitment procedures.

After careful examination of the Commission's opinion, the Ombudsman informed the Commission, in his letter of 8 March 1999, that in his view its approach contained instances of maladministration. In order to remedy these shortcomings, the Ombudsman made draft recommendations, in accordance with Article 3(6) of the Statute of the Ombudsman(1).

In its letter of 5 July 1999, the Commission provided the Ombudsman with a detailed opinion on these draft recommendations.

This special report is submitted to the European Parliament in accordance with Article 3(7) of the Statute of the Ombudsman. It also contains, in accordance with the said provision, a recommendation which the Ombudsman considers necessary in the present case.

A. The Ombudsman's inquiry and draft recommendations

On 7 November 1997, the Ombudsman opened an own-initiative inquiry into the secrecy which forms part of the recruitment procedures of the Commission. In his letter to the Commission, the Ombudsman pointed out that many citizens have their first contact with the Community institutions when they apply for employment with them. It would therefore be valuable for the institutions if the impressions which the citizens receive on this occasion were positive. The Ombudsman also referred to a number of complaints about lack of transparency in recruitment matters.

The Ombudsman noted two recurrent themes in the Community institutions' comments on this kind of complaint. The first is reference to Article 6 of Annex III to the Staff Regulations which provides that the "proceedings of the Selection Board shall be secret". The second theme is the wide discretionary powers of Selection Boards.

The Ombudsman accepts that Article 6 was enacted with a view to guaranteeing the independence of Selection Boards, by protecting them from interference and pressures. In his view, however, this legitimate consideration should not stand in the way of developing procedural rights for candidate, consistent with the requirements of Article 6.

The Ombudsman also accepts that Selection Boards are vested with wide discretionary powers. He considers, however, that the possession of such powers should not prevent public authorities from complying with principles of good administration.

The Ombudsman therefore asked the Commission whether it envisaged:

1. allowing candidates in written examinations to take the questions with them from the examination room,

2. communicating the evaluation criteria to a candidate who so requests,

3. making known to the candidates the names of the members of the Selection Board, and

4. allowing the disclosure to a candidate in a written examination of the marked copy of his or her own examination script.

The Commission replied on 2 March 1998. As regards the first two points, it informed the Ombudsman that 1. candidates now have the possibility to take away the questions, unless their contents are protected by intellectual property rights and that 2. Selection Boards communicate the general correction or evaluation criteria to candidates who so request.

With regard to the remaining two issues raised by the Ombudsman (3 and 4), the Commission claimed that the allegation of a lack of transparency was based on a limited number of complaints. In the Commission's view, there is a fundamental difference between competitions and normal examinations, in that participants in the latter are judged against an objective standard whereas candidates in a competition are judged against each other, and only the best are put on the reserve list. According to the Commission, only the Selection Board can assess the performance of each candidate as it alone compares the performance of all the candidates. The communication of a marked copy to a candidate would not benefit the latter since the appraisal by a person who had not assessed all the other candidates would be meaningless. The Commission further argued that given the high number of candidates in competitions, disclosure of marked copies would cause administrative and financial burdens. The Commission also pointed out that the discretionary power of Selection Boards is subject to supervision by the Community courts.

By letter of 8 March 1999, the Ombudsman took note of the explanations provided by the Commission with regard to the first two issues and indicated that on the basis of these explanations he did not consider it necessary to inquire further into these questions.

With regard to the discolsure of the names of the members of the Selection Board, the Ombudsman recalled that it is a fundamental principle of good administration that any member of the public dealing with a civil servant is entitled to know the name of that civil servant. Given that an administration without a face and a name is alienating, the Ombudsman informed the Commission that he found it unacceptable that candidates who participate in an oral examination should not be entitled to know the names of the examiners.

As regard the candidate's access to the marked examination script, the Ombudsman stressed the importance of ensuring full public confidence in the proceedings of Selection Boards. In his view, the documents concerned consist of two components, the examination script itself and the corrections made by the examiners. The Ombudsman reasoned that the candidate is the author of the examination script and cannot be refused access to that same script. In reply to the Commission's second point, the Ombudsman insisted that it was for the citizen and not the administration to decide whether it was reasonable to request the information concerned. A candidate had indeed a fundamental interest in knowing the errors he might have made. As to the administrative and financial burdens referred to by the Commission, the Ombudsman suggested that if a high number of candidates were to request copies of their examination scripts, the Commission could consider levying a reasonable fee to cover the costs involved.

On the basis of these considerations, the Ombudsman made the following draft recommendations to the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

The Commission shall make known to candidates in oral examinations the names of the members of the Selection Board.

In its future competitions, the Commission shall give candidates in written examinations access to their own marked examination scripts upon request.

B. The Commission's response to the draft recommendations

In its reply of 5 July 1999, the Commission acknowledged that the Amsterdam Treaty recognises transparency as a general principle of the European Union and gives citizens a proper right of access to documents of the European Parliament, the Council and the Commission (Article 255 of the EC Treaty). In this context, the Commission drew attention in particular to its Decision No 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents(2) and the Code of Conduct concerning public access to Council and Commission documents(3). The Commission pointed out, however, that for the time being none of these texts provides for an exception to the rules which are applicable to recruitment competitions under the Staff Regulations and the case-law of the Community courts.

As regards disclosure of the names of members of Selection Boards, the Commission gave a positive reply, stating that the names of the members of the Selection Board would be communicated formally (and not only orally) to candidates in oral examinations.

As regards access to the marked examination scripts, the Commission pointed out that it had already granted such access to the Ombudsman in a case where the latter had asked to see the document concerned. The Ombudsman had been allowed to inspect the document in the offices of the Commission. This access had been granted (and would be granted in future cases) in view of the specific institutional role which the EC Treaty accords to the Ombudsman.

However, the Commission continued to oppose the suggestion that such access should be granted to candidates themselves. In order to justify this view, the Commission relied in substance on the arguments already put forward in its letter of 2 March 1998, namely: that there is a fundamental difference between competitions and normal examinations, in that participants in the latter are judged against an objective standard whereas candidates in a competition are judged against each other; that only the Selection Board could assess the performance of each candidate as it alone compares the performance of all the candidates; that the communication of a marked copy to a candidate would not benefit the latter since the appraisal by a person who had not assessed all the other candidates would be meaningless and, finally, that the obligation to disclose marked examination scripts could entail considerable administrative and financial burdens.

The Commission insisted that disclosure of the examination scripts, be they marked or not, to candidates would mark a radical departure from previous practice. It should therefore be contemplated in the more general context of the Regulation implementing Article 255 of the EC Treaty which would have to be adopted by the Council on the basis of a proposal from the Commission. Given the importance of the issue and the consequences which such a change would bring about in terms of human resources, even if fees had to be paid, the present Commission, which had resigned, felt that it was not in a position to adopt the measure demanded by the Ombudsman, and that a definitive response to the recommendation of the Ombudsman would have to be given by the new Commission.

C. Analysis of the Commission's response

Disclosure of the names of members of Selection Boards

The Ombudsman welcomes the readiness of the Commission to divulge the names of the members of Selection Boards to applicants in competitions. The introduction of this requirement in all cases will greatly further transparency and reassure applicants taking part in competitions. Although the Commission's acceptance is expressed in careful language, the Ombudsman assumes that the Commission will indeed proceed accordingly and disclose the relevant names. On the basis of this assumption the Ombudsman does not consider it necessary to continue with his inquiry into this issue.

Access to a candidate's own marked examination script

The Ombudsman is not aware of any provision of Community law or case-law of the Community courts which would prevent the Commission from allowing a candidate in a written examination to see his or her own marked script. Article 6 of Annex III to the Staff Regulations stipualtes that the "proceedings of the Selection Board" are to be secret. The deliberations of the Selection Board must therefore remain secret, but it does not necessarily follow from this that a candidate must be prevented from seeing his or her own marked examination script.

The main argument which the Commission puts forward in order to justify its refusal concerns the nature of the recruitment procedure. In the Commission's view the Selection Board assesses each candidate by comparing his or her performance to the performance of all the other candidates in the same competition. The Commission concludes from this that the discolsure of the marked examination script would serve no purpose, since it only reflects the appraisal of a person who has not assessed all the other candidates.

However, being able to inspect his own marked examination script does entail several benefits for the candidate. First, the candidate gains the opportunity to discover his mistakes and thus to improve his future performance. Second, the candidate's confidence in the administration is strengthened. This is important, since there seems to be a widespread belief that tests are not always properly assessed by the Commission and indeed that sometimes they are not assessed at all. Third, if a candidate feels that he has been wrongly assessed, he will be able to argue much more precisely if he has seen his marked examination script. In any event, the citizen who requests information should be the judge of whether the information is useful, not the administration.

The Commission also refers to administrative and financial burdens which the disclosure of examination scripts could entail. The Ombudsman is confident that the Commission services could organise the process of disclosure in a way that would minimise the costs since it is unlikely that every candidate would wish to see his or her marked examination script.

The Commission correctly notes that the Ombudsman has been able to inspect the marked examination script of a candidate who made a complaint. In this context, it is useful to recall that, according to Article 3(2) of his Statute, all the Community institutions and bodies are "obliged to supply the Ombudsman with any information he has requested of them and give them access to the files concerned". However, the possibility for the Ombudsman to inspect a marked examination script is not a satisfactory substitute for the candidate's own access.

The Commission is also correct to point out that the activity of Selection Boards is subject to judicial review by the Community courts. However, this means that queries which could easily have been solved if the candidate had a chance to see the marked examination script may have to be dealt with by the courts. The Ombudsman believes that this is highly unsatisfactory for candidates. Granting access to the marked examination script, on the other hand, is likely to satisfy many queries with a minimum of effort and time.

The Commission considers that the issue of access to marked examination scripts could more suitably be solved in the context of the implementing provisions to be adopted under Article 255 of the EC Treaty. The implementing provisions could establish a right of access to such documents by candidates in competitions. However, the Ombudsman considers that this legislative possibility does not prevent the Commission from improving its administrative practices now. The issue is pressing and should be settled as soon as possible.

The Ombudsman welcomes the fact that the Commission no longer categorically excludes the possibility of candidates being given access to their marked examination scripts in the future, and that it envisages that the new Commission will decide on this issue. However compliance with the principles of Community law should not depend on the composition of the Commission.

As the Treaty of Amsterdam has confirmed, the obligation to take decisions as openly as possible represents one of the fundamental principles of the administrative law of the European Communities. Furthermore, it is important to ensure that citizens receive a positive impression when first encountering the Community institutions. Citizens who wish to work for the Communities receive a very bad impression if they are left in doubt as to whether they have been assessed fairly and correctly. To dispel such doubt it is essential that each candidate should have the possibility to inspect the marked copy of his or her own examination script. This possibility in no way conflicts with the requirement that the proceedings of Selection Boards shall be secret, since it does not concern the deliberations of Selection Boards in which the relative merits of candidates are assessed. For these reasons, the Commission's failure to modify its administrative procedures so as to give each candidate the possibility of access to his or her own marked examination script, appears to constitute an instance of maladministration. The Ombudsman therefore has the duty to make this special report to the European Parliament in accordance with Article 3(7) of the Statute on the European Ombudsman. The Ombudsman also makes the following recommendation to deal with the maladministration.

D. The Ombudsman's recommendation

In its future recruitment competitons, and at the latest from 1 July 2000 onwards, the Commission should give candidates access to their own marked examination scripts upon request.

Strasbourg, 18 October 1999.

Jacob SÖDERMAN

(1) Decision No 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (OJ L 113, 4.5.1994, p. 15).

(2) OJ L 46, 18.2.1994, p. 58.

(3) OJ L 340, 31.12.1993, p. 41.