European Ombudsman
Dear Mr G.,
On 6 August 2005, you submitted a complaint to the European Ombudsman against the European Commission concerning Open Competition COM/B/1/02.
On 20 October 2005, I forwarded your complaint to the President of the Commission and asked the Commission to submit an opinion. The Commission sent its opinion on 10 February 2006. I forwarded the opinion to you with an invitation to make observations, which you sent on 26 March 2006.
By letter of 23 June 2006, I started further inquiries into your complaint.
The Commission sent its French-language reply to my further inquiries on 14 August 2006, and supplied an English translation thereof on 28 August 2006. I forwarded both language versions of the reply to you with an invitation to make observations, which you sent on 23 October 2006.
I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.
The complainant successfully participated in Open Competition COM/B/1/02 organised by the European Commission with a view to constituting a reserve of administrative assistants in the fields of financial management and project/contract management (the "Competition")(1), and was placed on the reserve list of assistants in the field of project/contract management(2). However, although he was invited for interviews several times, he refused to accept appointments under the new Staff Regulations(3).
According to the complainant, the chronology of the events relevant for his case was as follows:
The Competition was published in the Official Journal of 5 February 2002, and started in July 2002. The complainant sat the pre-selection test on 22 November 2002, and the written test on 23 May 2003. He took the oral test on 18 December 2003.
In the meantime, on 18 July 2003, a Corrigendum to the Notice of Competition was published in the Official Journal(4) ("the Corrigendum"), shortening the validity of the reserve lists for the Competition from 31 December 2004 to 31 December 2003.
In April 2004, the complainant received from the European Personnel Selection Office ("EPSO") a letter dated 5 March 2004, which informed him of his inclusion in the reserve list and indicated that the list was valid until 31 December 2004.
According to the complainant, the Commission did not, in the course of April 2004, provide the laureates of the Competition with any information concerning the recruitment process but informed them that an information letter would be sent within the coming days regarding both the recruitment process and the reform of the Staff Regulations.
By letter of 12 May 2004, the Commission informed the complainant, among other things, that "(…) on 22.03.2004 the Council formally adopted the amendment to the Staff Regulations proposed by the Commission and, as planned, these new provisions entered into force on 1 May 2004. These new provisions, which also include a new career system, apply to all persons entering the service from 1 May 2004."(5) The Commission also provided a hyperlink to the website containing detailed information, and referred to Article 12 of Annex XIII of the new Staff Regulations which sets out the equivalence between the competition grades and the new recruitment grades as from 1 May 2004. Finally, the Commission informed the complainant that, as a result of these changes, the new recruitment grade for the Competition organised for a B5/B4 career was grade B*3, while the gross basic salary for step 1 of that grade was EUR 2 976.76.
By letter of 8 August 2004 to the Commission, the complainant contested the contractual conditions proposed to him under the new Staff Regulations, and noted that those conditions were significantly less favourable than those foreseen in the Notice of Competition. He went on to state that, on the basis of these latter conditions, he had rejected some ten offers of employment.
In its answer of 28 September 2004 to the complainant, the Commission pointed out that, at the time when the Notice of Competition was published, the reform of the Staff Regulations was at the stage of negotiations. As a result, it was impossible for the Commission to mention in that Notice the impact which the reform could have on the modalities of recruitment of future laureates. The Commission also stated that, at a more advanced stage of the negotiations, the Corrigendum mentioned the reform of the Staff Regulations and a potential modification of the recruitment conditions as a result of that reform. Finally, the Commission emphasised that it had no other choice than to apply the new Staff Regulations, and that Articles 12(3) and 13(1) of Annex XIII thereof stipulate that officials who have been included in a list of suitable candidates before 1 May 2006 shall be graded in accordance with the tables contained in the above Articles according to which B5 and B4 competitions lead to recruitment at grades B*3(6) and AST 3(7) respectively. The Commission also provided a hyperlink to its website containing information on the reform of the Staff Regulations.
In his complaint to the European Ombudsman, the complainant pointed out, among other things, that no direct information or notification concerning the reform of the Staff Regulations was given to him at any time during the two-year period during which the Competition was in progress, not even in EPSO's letter of 5 March 2004 informing him of his inclusion in the reserve list. According to the complainant, the information in the Corrigendum could not be reasonably considered as information about the ongoing reform process. In the complainant's view, the objective of the Corrigendum was to reduce the validity of the reserve lists for the Competition from 31 December 2004 to 31 December 2003, and the reform of the Staff Regulations was only mentioned as an introduction to that objective. The complainant considered that the Commission should have informed the candidates of the reform of the Staff Regulations at the latest by 18 July 2003, that is, by the date on which the Corrigendum containing the above introductory remark was published in the Official Journal.
The complainant further pointed to the fact that, by means of the above Corrigendum, the validity of the reserve lists for the Competition was reduced from 31 December 2004 to 31 December 2003. He went on to point out, however, that, in the case of the reserve list of assistants in the field of project/contract management on which his name was placed, no extension of its validity to 31 December 2004 had ever been made either by means of an announcement in the Official Journal or of a letter addressed to the complainant or to other candidates. The complainant added that the validity of the reserve list was only extended from 31 December 2004 to 31 December 2005. This, according to him, meant that many laureates were recruited in 2004 although the reserve list in which their names appeared was not valid.
On the basis of the above, the complainant alleged(8) that the Commission:
The Commission's opinion was as follows:
As regards the first allegation, the Commission stated that the Competition was organised and carried out by EPSO, which, during the procedure, informed all candidates that the proposed amendments to the Staff Regulations in the period between 2002 and 2004 could, if adopted, have a direct impact on the level of their recruitment such as the initial grading . According to the Commission, "[t]he same means of information, including a notice posted in the Official Journal C 168 A/1 dated 18 July 2003, have been used in the case of competition COM/B/1/02 as in competitions concerned in complaints 1945/2004/TN (et al.)." The Com mission recalled that, in complaints 1945/2004/TN and others(9) ("the Joint Inquiry"), the Ombudsman did not find any maladministration by the Commission with respect to the information given to candidates about the potential effects of the new Staff Regulations. The Commission took the view that the same conclusion should apply to the present case.
The Commission pointed out that, as part of standard practice, by letter of 12 May 2004, it informed the complainant, as well as all the other laureates of the Competition, that the conditions for recruitment had been modified by Council Regulation (EC, Euratom) 723/2004 No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities(10) ("Regulation 723/2004"). The Commission acknowledged that this letter was sent only after the entry into force of the new Staff Regulations. It pointed out, however, that the delay between the adoption of Regulation 723/2004 and its entry into force was very short and therefore precluded information being sent to all laureates before the above letter was actually sent.
For the above reasons, the Commission rejected the complainant's allegation that that he was not personally informed of the consequences of the new Staff Regulations.
In reply to the second allegation, the Commission stated that the Competition was completed by early March 2004 and that, as a result, all successful candidates, including the complainant, were informed of their inclusion in the reserve list by EPSO's letter of 5 March 2004 of which the Commission provided a copy. The Commission pointed out that the letter clearly stated that the reserve list was valid until 31 December 2004. The Commission noted that it cannot therefore understand why the complainant alleges that the validity of the reserve list had not been extended until 31 December 2004 , and gathered that there may have been a misunderstanding on his part. The Commission also referred to the extension of the validity of t he reserve list from 31 December 2004 to 31 December 2005, which was decided in November 2004 and announced to all remaining candidates by letter of 3 December 2004. The Commission provided the Ombudsman with a copy of that letter as well and concluded by stating that all recruitments made from the reserve list in 2004 were perfectly legal.
As regards the first allegation, the complainant referred to the Commission's statement that " [t]he same means of information, including a notice posted in the Official Journal C 168 A/1 dated 18 July 2003, have been used in the case of competition COM/B/1/02 as in competitions concerned in complaints 1945/2004/TN (et al.)." (Complainant's emphasis).
The complainant understood the part of the statement which he underlined to indicate that there were other means of information available, apart from the notice in the Official Journal of 18 July 2003. He requested that the Ombudsman ask the Commission to clarify to which other means of information it referred.
The complainant also referred to the argument, made in his complaint, that the information included in the Corrigendum could not be reasonably considered as information about the ongoing reform process, since the objective of the Corrigendum was to reduce the validity of the reserve lists for the Competition from 31 December 2004 to 31 December 2003, and the reform of the Staff Regulations was only mentioned as an introduction to that objective. In this regard, he expressed the view that (a) the information contained in the Corrigendum was the first and only information provided to the candidates and (b) was, in addition, totally negligible and merely served as an introduction to other information, namely, the reduction of the validity of the reserve lists. The complainant also reiterated that no information was sent directly to him.
On the basis of the above arguments, the complainant took the view that, in his case, the Ombudsman cannot reach the same conclusion as in the Joint Inquiry.
As regards the second allegation, the complainant repeated the chronology of the changes concerning the reserve list's the period of validity, and maintained his allegation that the Commission failed officially, that is, by means of an announcement in the Official Journal, to extend the list's validity from 31 December 2003 to 31 December 2004. The complainant acknowledged that the extension of the reserve list's validity was indeed raised in EPSO's letter of 5 March 2004, but expressed his doubts whether such a reference in that letter could be considered as an official extension. Finally, the complainant wondered what the relevance of the Commission's reference to the further extension from 31 December 2004 to 31 December 2005 was, since he never alleged otherwise.
By letter of 23 June 2006, the Ombudsman addressed further inquiries to EPSO(11) and requested:
By letter of 29 June 2006, EPSO informed the Ombudsman that it had transferred the further inquiries to the Commission, which would prepare a reply.
The Commission replied to the further inquiries as follows:
(1) As regards the issue of the other means of information, the Commission noted that it had found an inaccuracy in its opinion, and stated that the notice in Official Journal C 168 A of 18 July 2003 was in fact the only specific information for the candidates involved in the Competition in question. The Commission added, however, that the public discussions on the reform of the Staff Regulations and the related information on the Commission's website clearly constituted other source s of information. The Commission also took the view that the issue of other means of information was in any event irrelevant since the content of the legislative decision amending the Staff Regulations was not known at the date on which the reserve lists for the Competition were drawn up. In this regard, the Commission pointed out that the complainant was informed of having been placed on the reserve list by EPSO's letter of 5 March 2004, whereas the amendment to the Staff Regulations was adopted by the Council on 22 March 2004 and published in the Official Journal of 27 April 2004. The Commission concluded that it was therefore not possible for it, in early March 2004, to provide the complainant with information concerning the detailed content of a legislative decision adopted and published at later dates. (2) As regards the issue of the extension of the reserve list's validity, the Commission first pointed out that decisions extending the validity of reserve lists are not published in the Official Journal, but are internal decisions taken by the appointing authority and communicated by post to the successful candidates concerned. With regard to the reserve list in the field of project/contract management, on which the complainant has been placed, the Commission pointed to the fact that the list was drawn up in March 2004. Therefore, the expiry date of 31 December 2003 was by then obsolete, since the appointing authority would not draw up a reserve list bearing an expiry date that had already lapsed. The Commission attached a copy of a letter dated 3 March 2004, by which the Director of EPSO transmitted the above reserve list to the appointing authority. According to the letter, the reserve list was valid until 31 December 2004. The Commission noted that successful candidates were notified of this expiry date by EPSO's letter of 5 March 2004, which informed them of the fact that they had been placed on the reserve list. As a result of this communication, successful candidates in this Competition were aware of the fact that the pertinent expiry date was 31 December 2004. The Commission concluded that, s ince the initial expiry date for the reserve list drawn up in March 2004 was 31 December 2004, the question of an extension of the date of 31 December 2003 to 31 December 2004 does not apply.
(1) As regards the issue of the other means of information, the Commission noted that it had found an inaccuracy in its opinion, and stated that the notice in Official Journal C 168 A of 18 July 2003 was in fact the only specific information for the candidates involved in the Competition in question.
The Commission added, however, that the public discussions on the reform of the Staff Regulations and the related information on the Commission's website clearly constituted other source s of information.
The Commission also took the view that the issue of other means of information was in any event irrelevant since the content of the legislative decision amending the Staff Regulations was not known at the date on which the reserve lists for the Competition were drawn up. In this regard, the Commission pointed out that the complainant was informed of having been placed on the reserve list by EPSO's letter of 5 March 2004, whereas the amendment to the Staff Regulations was adopted by the Council on 22 March 2004 and published in the Official Journal of 27 April 2004. The Commission concluded that it was therefore not possible for it, in early March 2004, to provide the complainant with information concerning the detailed content of a legislative decision adopted and published at later dates.
(2) As regards the issue of the extension of the reserve list's validity, the Commission first pointed out that decisions extending the validity of reserve lists are not published in the Official Journal, but are internal decisions taken by the appointing authority and communicated by post to the successful candidates concerned.
With regard to the reserve list in the field of project/contract management, on which the complainant has been placed, the Commission pointed to the fact that the list was drawn up in March 2004. Therefore, the expiry date of 31 December 2003 was by then obsolete, since the appointing authority would not draw up a reserve list bearing an expiry date that had already lapsed. The Commission attached a copy of a letter dated 3 March 2004, by which the Director of EPSO transmitted the above reserve list to the appointing authority. According to the letter, the reserve list was valid until 31 December 2004. The Commission noted that successful candidates were notified of this expiry date by EPSO's letter of 5 March 2004, which informed them of the fact that they had been placed on the reserve list. As a result of this communication, successful candidates in this Competition were aware of the fact that the pertinent expiry date was 31 December 2004.
The Commission concluded that, s ince the initial expiry date for the reserve list drawn up in March 2004 was 31 December 2004, the question of an extension of the date of 31 December 2003 to 31 December 2004 does not apply.
As regards the issue of the other means of information, the complainant was pleased to note that the Commission endorsed his view that there was no information provided to the candidates other than the information contained in the Official Journal of 27 April 2004, that is, the publication of Regulation 723/2004 amending the Staff Regulations. He also expressed the view that the public discussions on the reform of the Staff Regulations and the related information on the Commission's website, referred to by the Commission, could not be considered as a personal way of informing the candidates.
As regards the issue of the extension of the validity of the reserve list, the complainant stated that he had no other comments to make.
1.1 The complainant successfully participated in Open Competition COM/B/1/02 (the "Competition")(12) for administrative assistants of B5/B4 grades, with a gross basic monthly salary of EUR 4311.55 for step 1 of grade B4. By letter of 5 March 2004, the European Personnel Selection Office ("EPSO") informed the complainant that he had been placed on the reserve list of assistants in the field of project/contract management(13).
Subsequently, on 1 May 2004, the new Staff Regulations(14) entered into force. According to Article 12(3) of Annex XIII to the new Staff Regulations, for competitions organised for a B5/B4 career, the new recruitment grade as from 1 May 2004 was grade B*3. The gross basic salary provided for grade 1 of this grade was EUR 2976.76.
By letter of 12 May 2004, the Commission informed the complainant of the amendment to the Staff Regulations and of its consequences as regards his grade and salary if recruited from the reserve list.
In his complaint to the European Ombudsman, the complainant alleged that the Commission failed to inform him personally of the consequences of the new Staff Regulations before their entry into force.
In support of his allegation, the complainant argued that the information in the Corrigendum to the Notice of Competition published in the Official Journal of 18 July 2003(15) ("the Corrigendum") could not be considered as information about the ongoing reform process, since (i) the objective of that Corrigendum was to reduce the validity of the reserve lists for the Competition from 31 December 2004 to 31 December 2003, and (ii) its reference to the reform of the Staff Regulations served only as an introduction to that objective.
1.2 The Commission stated that, by letter of 12 May 2004, it informed the complainant as well as all the other laureates of the Competition that the conditions for recruitment had been modified by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities(16) ("Regulation 723/2004"), which entered into force on 1 May 2004. The Commission acknowledged that this letter was sent after the entry into force of the new Staff Regulations, but pointed out that the period of time that elapsed between the adoption of Regulation 723/2004 and its entry into force was very short and, as such, did not allow the Commission to provide all laureates with this information before the above letter was actually sent out.
In its reply to the Ombudsman's further inquiries, the Commission acknowledged that the information contained in the Corrigendum was in fact the only specific information provided to the candidates in the Competition concerning the reform of the Staff Regulations. However, the Commission added that the public discussions on the issue and the related information on the Commission's website clearly constituted other sources of information.
The Commission also pointed to the fact that the complainant was informed of his inclusion in the reserve list by EPSO's letter of 5 March 2004 and that the amendment to the Staff Regulations was adopted by the Council on 22 March 2004 and published in the Official Journal of 27 April 2004. According to the Commission, it was therefore not possible for it, in early March 2004, to provide the complainant with information concerning the detailed content of the legislative decision adopted and published at later dates.
1.3 At the outset, the Ombudsman points out that the present complaint raises the issue of the appropriate way of informing candidates placed on a reserve list for a Competition organised under the old Staff Regulations, of the fact that, in the event of recruitment, their grade and salary would be governed by the new Staff Regulations. Specifically, the above question, which also applies to the complainant, raises the issue of whether (i) the publication of information on the reform of the Staff Regulations contained in the Corrigendum and the publication of the amendment to the Staff Regulations in the Official Journal of 27 April 2004 can be considered as a sufficient way of communicating this information to candidates; or (ii) personal information to each individual candidate was necessary.
The Ombudsman notes that, in his complaint and observations, the complainant expressed the view that the relevant information should have been sent to each individual candidate.
1.4 Further, the Ombudsman notes that the very first source of reliable information on the basis of which the potential candidates decide whether they want to take part in a competition is the relevant notice of competition. In this context, the Ombudsman recalls, by analogy, the established case-law according to which the function of a notice of vacancy is to inform the candidates, as accurately as possible, of the nature of the conditions required to fill the post in question, so as to enable them to assess whether to apply for that post(17).
1.5 The Ombudsman notes that the Notice of Competition in the present case did not contain any information on the future reform of the Staff Regulations.
Given that the Notice of Competition was published on 5 February 2002 but the Commission's proposal for a Regulation amending the Staff Regulations(18) was dated only 24 April 2002, the Ombudsman considers reasonable the fact that the Notice of Competition did not contain any reference to the reform of the Staff Regulations(19).
However, the Ombudsman considers that, in the absence of such a reference in the Notice of Competition, it was incumbent on the Commission, after it submitted the relevant proposal to the Council, to do its utmost to inform the complainant and the other candidates in the Competition as soon and as comprehensively as possible of the reform of the Staff Regulations.
1.6 However, it follows from the available evidence that, in the period between the submission by the Commission of the proposal for the amendment to the Staff Regulations and its adoption by the Council, the complainant was only provided with the information contained in the Corrigendum. That information read as follows:
"After the date on which the above competition notice was published, the Commission formally sent to the Council a Staff Regulations reform proposal which includes changes to career structure and hence to recruitment conditions (…)".
1.7 The Ombudsman recalls that, in his joint inquiry into complaints 1945/2004/TN (and others)(20) (the "Joint Inquiry") concerning Open Competitions COM/A/1/02, COM/A/2/02, COM/A/3/02 and COM/A/9/01 (the "Joint Inquiry Competitions"), he concluded that
"candidates appear to have been provided with sufficient information enabling them to consult the relevant sources of information in order to make an evaluation of the possible implications for themselves of the proposals for new Staff Regulations that were under discussion in the legislative procedure"(21).
In light of the above, the Ombudsman thus found no instance of maladministration as regards the alleged failure by the Commission to inform the candidates about the impact of the new Staff Regulations.
The Ombudsman noted the statement, contained in the Commission's opinion, that the same conclusion should apply to the present case.
However, the Ombudsman points out that such a conclusion could only apply to the present case if the complainant in this case had been provided with information equivalent to that provided to the candidates in the Joint Inquiry Competitions.
1.8 The Ombudsman recalls that, in the course of the Joint Inquiry Competitions, the Commission sent a personal letter to the candidates ("Letter 1") already before the adoption of the amendment to the Staff Regulations by the Council. Letter 1 contained the following warning:
"The Commission has formally submitted to the Council a proposal to amend the Staff Regulations. I would draw your attention to the fact that this amendment of the Staff Regulations includes, among other things, a new career system which would amend the conditions for and the level of recruitment within the institutions. It is currently envisaged that this amendment will enter into force on 1 May 2004. It is therefore essential to know that it is expected that every person entering the service of the institutions from that date of entry into force would automatically be recruited on the basis of the provisions of these new Staff Regulations. I would inform you that the Commission proposal may be consulted on the Commission's website at: http://europa.eu.int/comm/reform/index_en.htm. Article 11 of Annex XIII to the proposal contains the table of correspondence between careers under current competitions and the recruitment grades following the entry into force of the amended Staff Regulations. You will understand that at present, with no formal decision having been made, it is impossible for us to provide further information to successful candidates who could take up posts within the institutions after the date of entry into force of this amendment to the Staff Regulations."
"The Commission has formally submitted to the Council a proposal to amend the Staff Regulations. I would draw your attention to the fact that this amendment of the Staff Regulations includes, among other things, a new career system which would amend the conditions for and the level of recruitment within the institutions.
It is currently envisaged that this amendment will enter into force on 1 May 2004. It is therefore essential to know that it is expected that every person entering the service of the institutions from that date of entry into force would automatically be recruited on the basis of the provisions of these new Staff Regulations.
I would inform you that the Commission proposal may be consulted on the Commission's website at: http://europa.eu.int/comm/reform/index_en.htm. Article 11 of Annex XIII to the proposal contains the table of correspondence between careers under current competitions and the recruitment grades following the entry into force of the amended Staff Regulations.
You will understand that at present, with no formal decision having been made, it is impossible for us to provide further information to successful candidates who could take up posts within the institutions after the date of entry into force of this amendment to the Staff Regulations."
1.9 In addition, the Ombudsman recalls that, in the Joint Inquiry Competitions, the Commission sent a further letter to the candidates ("Letter 2") in the period between the adoption of the amendment to the Staff Regulations and its entry into force. Letter 2 contained the following information:
"Further to the offer letter sent to you on (...), I would inform you that on 22.3.2004 the Council formally adopted the amendment to the Staff Regulations proposed by the Commission and, as planned, these new provisions will enter into force on 1 May 2004. These new provisions, which also include a new career system, will apply to all persons entering the service from 1 May 2004. Detailed information can be found on the website http://europa.eu.int/comm/reform/index_en.htm. Article 12 of Annex XIII sets out the correspondence between the competition grades and the new recruitment grades from 1 May 2004. As a result, as you will be entering [the] service on ..., as a successful candidate from a career competition ..., you will be recruited at the new grade ..*.., step 1 (provisional classification). The gross basic salary corresponding to this classification is ...EUR. The new Staff Regulations lay down that step 2 may be granted in order to take the recruit's professional experience into account and your final classification will be established as soon as possible."
"Further to the offer letter sent to you on (...), I would inform you that on 22.3.2004 the Council formally adopted the amendment to the Staff Regulations proposed by the Commission and, as planned, these new provisions will enter into force on 1 May 2004. These new provisions, which also include a new career system, will apply to all persons entering the service from 1 May 2004.
Detailed information can be found on the website http://europa.eu.int/comm/reform/index_en.htm. Article 12 of Annex XIII sets out the correspondence between the competition grades and the new recruitment grades from 1 May 2004.
As a result, as you will be entering [the] service on ..., as a successful candidate from a career competition ..., you will be recruited at the new grade ..*.., step 1 (provisional classification). The gross basic salary corresponding to this classification is ...EUR. The new Staff Regulations lay down that step 2 may be granted in order to take the recruit's professional experience into account and your final classification will be established as soon as possible."
1.10 The Ombudsman notes that no letter corresponding to the above Letters 1 or 2 was sent to the complainant in the present case until the period of time after the entry of the new Staff Regulations into force.
1.11 The Ombudsman also notes that the information on the reform of the Staff Regulations contained in the Corrigendum is much less detailed than the information contained in the above Letters 1 and 2, sent to the candidates in the Joint Inquiry Competitions. The Corrigendum contains merely a statement that the Commission submitted a proposal for the reform of the Staff Regulations which includes changes to the career structure and the recruitment conditions. There is neither a reference to the website where the proposal could be consulted nor a reference to Article 12 of Annex XIII of the new Staff Regulations containing the table indicating the equivalence between the old career structure and the new recruitment grades. References to the relevant website or to Article 12 of Annex XIII would have enabled the complainant to obtain available information on the consequences of the new Staff Regulations.
1.12 The available evidence shows that the relevant information was finally provided to the complainant by letter of 12 May 2004, that is, at a date subsequent to the entry into force of the new Staff Regulations. In that letter, the Commission informed the complainant that
"(…) on 22.03.2004 the Council formally adopted the amendment to the Staff Regulations proposed by the Commission and, as planned, these new provisions entered into force on 1 May 2004. These new provisions, which also include a new career system, apply to all persons entering the service from 1 May 2004."(22)
In the same letter, the Commission also included a hyperlink to the website containing detailed information, a reference to Article 12 of Annex XIII of the new Staff Regulations, and information on the complainant's new recruitment grade and gross basic salary.
1.13 The Ombudsman notes the explanation, contained in the Commission's opinion, that the reason why the above letter of 12 May 2004 was sent to the complainant only after the entry into force of the amendment to the Staff Regulations was the short period of time which elapsed between the adoption of the amendment and its entry into force. Further, the Ombudsman notes the explanation, given in the Commission's reply to the further inquiries, that, (a) by letter of 5 March 2004, EPSO informed the complainant that he had been placed on the reserve list and (b) the amendment to the Staff Regulations was adopted on 22 March 2004 and published in the Official Journal of 27 April 2004. The Commission went on to add that, given the time sequence relating to these events, it could not, in early March 2004, have provided the complainant with information concerning the detailed content of a legislative decision adopted and published at later dates.
The Ombudsman does not find the above explanations convincing.
First, the adoption of the new Staff Regulations was preceded by a long legislative process which extended from the submission of the Commission's proposal dated 24 April 2002 to the adoption thereof by the Council on 22 March 2004 . Therefore, as stated in point 1.5 above, it was incumbent on the Commission, after it submitted the proposal to the Council, to do its utmost to inform the complainant and the other candidates in the Competition as soon and as comprehensively as possible of the reform of the Staff Regulations.
Second, the Commission did not mention any differences between the Competition and the Joint Inquiry Competitions which, in the present case, prevented it from (i) sending to the complainant at an earlier date the letter corresponding to Letter 2 above; or (ii) sending him any letter corresponding to Letter 1.
1.14 Finally, as regards the Commission's argument that the public discussions on the reform of the Staff Regulations and the related information on the Commission's website clearly constituted other sources of information, the Ombudsman notes the following. The Commission drew the complainant's attention to those sources of information only in its letter of 12 May 2004 to him. Thus, in the Ombudsman view, those sources were not necessarily supposed to have been known by the complainant before that date.
1.15 In light of the above, the Ombudsman concludes that the Commission failed to inform the complainant personally of the consequences of the new Staff Regulations before their entry into force, and did not submit any convincing reasons to justify that failure. Therefore, that failure constituted an instance of maladministration.
The Ombudsman notes that the above failure relates to specific past events concerning an open competition which was completed in March 2004. Therefore, the Ombudsman does not consider it appropriate to propose a friendly solution or make a draft recommendation in the present case. He will therefore close the case with a critical remark.
2.1 The complainant alleged that the Commission failed to extend beyond 31 December 2003 the validity of the reserve list of assistants in the field of project/contract management(23) and that it recruited laureates from an invalid reserve list in 2004.
In support of his allegation, the complainant stated that (i) according to EPSO's letter of 5 March 2004, the reserve list was valid until 31 December 2004; but (ii) the Corrigendum changed its validity from 31 December 2004 to 31 December 2003.
The complainant argued that there had never been any modification of the validity of the reserve list designed to extend its validity to 31 December 2004 by means of either (i) an announcement in the Official Journal; or (ii) a letter to the complainant or other laureates. He added that the validity of the reserve list was only extended from 31 December 2004 to 31 December 2005.
2.2 The Commission stated that all recruitments made from the reserve list in 2004 were perfectly legal, and pointed to EPSO's letter of 5 March 2004 by which the complainant was informed of his inclusion in the reserve list and which clearly stated that the reserve list was valid until 31 December 2004.
In its reply to the Ombudsman's further inquiries, the Commission pointed out that the reserve list was drawn up in March 2004, and attached a copy of a letter dated 3 March 2004 by which the Director of EPSO transmitted to the appointing authority the reserve list and indicated that the list was valid until 31 December 2004. According to the Commission, this meant that the expiry date of 31 December 2003 was, in March 2004, obsolete since the appointing authority would not draw up a reserve list with an expiry date that had already lapsed.
The Commission also stated that decisions extending the validity of reserve lists are not published in the Official Journal, but are internal decisions taken by the appointing authority and communicated by post to the successful candidates concerned.
2.3 First, the Ombudsman considers reasonable the Commission's explanations, supported by appropriate documentary evidence, that (i) the appointing authority would not draw up a reserve list with an expiry date that had already lapsed; and (ii) the expiry date of 31 December 2003 was obsolete in early March 2004 when the reserve list was drawn up.
2.4 Second, the Ombudsman notes that the reserve list of assistants in the field of project/contract management which, by letter of 3 March 2004, the Director of EPSO transmitted to the appointing authority stated, among other things: "I am transmitting to you, in your capacity as the appointing authority, the selection board's reasoned report, as well as the reserve list (…) This list is valid until 31 December 2004."(24)
2.5 Third, the Ombudsman recalls that Article 254(3) of the EC Treaty stipulates that "[o]ther directives, and decisions, shall be notified to those to whom they are addressed and shall take effect upon such notification."
In this regard, the Ombudsman notes that EPSO's letter of 5 March 2004 to the laureates including the complainant stated, among other things, that "[f]rom this list, valid until 31/12/2004, laureates will be chosen with a view to filling vacant posts"(25).
2.6 The Ombudsman therefore agrees with the Commission that the laureates were aware of the fact that the expiry date of the reserve list was 31 December 2004. Moreover, the Ombudsman notes that, in his further observations, the complainant did not dispute the Commission's above arguments.
2.7 On the basis of the analysis in points 2.3 to 2.6 above, the Ombudsman considers that (i) the period of validity of the reserve list was properly fixed at 31 December 2004; and (ii) the complainant was duly informed of that period of validity. Therefore, the Ombudsman finds no maladministration as regards this aspect of the complaint.
On the basis of the Ombudsman's inquiries into this case, it is necessary to make the following critical remark:
The Commission failed to inform the complainant personally of the consequences of the new Staff Regulations before their entry into force, and did not submit any convincing reasons to justify that failure. Therefore, that failure was an instance of maladministration.
For the reasons explained in point 1.15 above, the Ombudsman closes the case with the above critical remark.
The President of the Commission will be informed of this decision.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) Notice of Open Competition published in OJ 2002 C 32 A, p. 13.
(2) Reserve list published in OJ 2004 C 138, p.18.
(3) The Staff Regulations as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ 2004 L 124, p. 1.
(4) OJ 2003 C 168 A, p. 1.
(5) Translation from French by the Ombudsman's services.
(6) If the recruitment occurs between 1 May 2004 and 30 April 2006.
(7) If the recruitment occurs after 1 May 2006.
(8) The complainant also made more allegations and claims concerning the changes in the recruitment conditions following the adoption of the new Staff Regulations and the delays which occurred in the process of the Competition. In that respect, the Ombudsman, by letter of 20 October 2005, referred to (i) Article 195 of the EC Treaty ("In accordance with his duties, the European Ombudsman shall conduct inquiries for which he finds grounds (...)"); (ii) the ongoing legal proceedings before the Court of First Instance (Case T-220/05, which concerns the Competition referred to in the present complaint, as well as Cases T-58/05, T-130/05, T-160/05, T-162/05, T-164/05, T-170/05, T-183/05, T-192/05 and T-207/05); and (iii) his findings of no maladministration in his Joint Inquiry (see note 9 below). In the same letter of 20 October 2005, the Ombudsman informed the complainant that, for the above reasons, there were no grounds for the Ombudsman to conduct inquiries into the complainant's allegations other than those identified in points (1) and (2) above. In his letter of 23 June 2006 to the complainant, the Ombudsman confirmed the scope of the present inquiry and explained the reasons for that confirmation.
(9) Complaints 1945/2004/TN, 2026/2004/(OV)TN, 2062/2004/TN, 2087/2004/TN, 2098/2004/(JMA)TN, 2108/2005/TN, 2109/2004/TN, 2110/2004/TN, 2111/2004/TN, 2129/2004/TN, 2132/2004/TN, 2163/2004/TN, 2197/2004/TN, 2328/2004/TN, 2336/2004/TN, 2339/2004/TN, 2384/2004/TN and 2567/2004/TN).
(10) OJ 2004 L 124, p. 1.
(11) In December 2005, the Commission informed the Ombudsman of its decision to transfer the handling of all complaints concerning open competitions to EPSO, including those related to recruitment procedures launched before the creation of EPSO. The further inquiries were therefore sent to EPSO.
(12) See note 1 above.
(13) See note 2 above.
(14) See note 3 above.
(15) See note 4 above.
(16) OJ 2004 L 124, p. 1.
(17) Case T-240/01 Cougnon v Court of Justice [2003] ECR-SC I-A-263 and II-1283, paragraphs 112 and 113.
(18) COM(2002) 213 final.
(19) The Ombudsman came to the same conclusion in point 3.4 of the decisions on the Joint Inquiry complaints.
(20) See note 9 above.
(21) See, point 3.12 of the decisions on the Joint Inquiry.
(22) Translation from French by the Ombudsman's services.
(23) The reserve list of assistants in the field of project/contract management, on which the complainant was placed, was published on page 18 of the Official Journal 2003 C 138. (The reserve list of assistants in the field of financial management was published on page 16 of the same issue of the Official Journal).
(24) Translation from French by the Ombudsman's services.
(25) Translation from French by the Ombudsman's services.
