Ευρωπαίος Διαμεσολαβητής
Mr President,
On 21 December 2006, I informed you that I had decided to open an own-initiative inquiry concerning the way in which the European Commission interpreted and applied Article 5(3) (a) (iii) of the Staff Regulations as regards the admission to competitions or the recruitment of temporary agents under Article 2(b) of the Conditions of Employment.
On 27 March 2007, the Commission sent its opinion.
I am writing now to let you know the results of the inquiries that have been made.
Article 5(3) (a) of the Staff Regulations of officials of the European Communities (the "Staff Regulations"), which concerns the requirements of appointment of officials in function group A ST, is worded as follows:
"(i) a level of post-secondary education attested by a diploma, or (ii) a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or (iii) where justified in the interests of the service, professional training or professional experience of an equivalent level."
"(i) a level of post-secondary education attested by a diploma, or
(ii) a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years, or
(iii) where justified in the interests of the service, professional training or professional experience of an equivalent level."
Article 10(1) of the Conditions of Employment of other agents of the European Communities (the "Conditions of Employment") stipulates that Article 5(3) of the Staff Regulations applies by analogy to the appointment of temporary agents.
On 29 April 2005, the Ombudsman received a complaint concerning a recruitment procedure at the Commission (complaint 1707/2005/GG).
In its opinion on this complaint, the Commission pointed out that it (and the European Personnel Selection Office) excluded the possibility to rely on Article 5(3) (a) (iii) of the Staff Regulations as regards the admission to competitions or the recruitment of temporary agents under Article 2(b) of the Conditions of Employment(1). The same categorical statement was made in a note from the Commission's Directorate-General Administration and Personnel ("DG ADMIN"), dated 24 June 2004, which was cited in a letter of 16 June 2005 that had been drafted by another of the Commission's services and was submitted to the Ombudsman by the complainant.
It thus seemed that the Commission had decided to renounce a possibility put at its disposal by the Staff Regulations. The Ombudsman therefore asked the Commission for further information in this regard.
In its reply, the Commission noted that according to established case-law, the Appointing Authority was not entitled to deprive itself of the discretionary powers that the Staff Regulations put at its disposal. The Commission added that, far from considering that Article 5(3) (a) (iii) of the Staff Regulations should never be applied as regards the recruitment of temporary agents on permanent posts, it was conscious of the need for a case by case evaluation and of the fact that such an evaluation could, in exceptional cases, lead to the conclusion that the interest of the service justified using this provision.
This statement was difficult to reconcile with the statements the Commission had made in its opinion and in both its note of 24 June 2004 and its letter of 16 June 2005. It could perhaps be assumed that the Commission's most recent reply corrected its previous statements.
However, regard had to be had to the fact that together with its above-mentioned reply, the Commission also submitted a copy of a note dated 18 May 2004 which DG ADMIN had addressed to the persons in charge of human resources within the Commission's services. Attached to this document was a "Checklist à l'usage des services demandeurs" concerning the recruitment of temporary agents within the meaning of Article 2(b) of the Staff Regulations.
Point 2 of this 'Checklist' sets out the "Conditions minimales" for the recruitment of such temporary agents. At first sight, these conditions appeared to be based exclusively on Article 5(3) (a) (i) and (ii) of the Staff Regulations, but not on Article 5(3) (a) (iii).
There thus remained doubt as to what the Commission's actual position was. The issue was not decisive for complaint 1707/2005/GG, and the Ombudsman therefore closed his inquiry into this case by a decision adopted on 21 December 2006(2).
However, given that the Commission's approach concerning this issue potentially affected a large number of persons, the Ombudsman decided at the same time to open an own-initiative inquiry to clarify matters.
In his letter opening the inquiry, the Ombudsman asked the Commission to inform him as to its position regarding the issue mentioned above, that is to say, whether or not the Commission excluded the possibility to rely on Article 5(3) (a) (iii) of the Staff Regulations as regards the admission to competitions or the recruitment of temporary agents under Article 2(b) of the Conditions of Employment.
The Ombudsman added that it would be helpful in this context if the Commission could provide information on whether any temporary agents had been recruited by it on the basis of Article 5(3) (a) (iii) of the Staff Regulations since 1 May 2004.
In its opinion, the Commission made the following comments:
In accordance with the case-law of the Community courts, the appointing authority enjoyed a large margin of discretion in matters relating to recruitment. The Commission's choice to use Article 5(3) (a) (iii) of the Staff Regulations only in exceptional cases was covered by these discretionary powers. If the Ombudsman were to express his views on how the Commission applied the relevant rules, this could result in a limitation of the autonomy of the appointing authority in the exercise of its functions. Such an inquiry would not concern individual cases but the general policy of the institution as regards the application of Article 5(3) (a) (iii) of the Staff Regulations. However, in a spirit of transparency and good co-operation the Commission would reply to the Ombudsman's requests.
The Commission had already made it clear that it was far from assuming that Article 5(3) (a) (iii) of the Staff Regulations should never be used as regards the recruitment of a temporary agent on a permanent post. However, it considered that, as a general rule, and as regards function group AST, it was appropriate to require the level of education set out in Article 5(3) (a) (i) and (ii) of the Staff Regulations. Article 5(3) (a) (iii) of the Staff Regulations should only be used on an exceptional basis in individual cases where the assessment of the facts led to the conclusion that it was in the interest of the service to derogate from the general rule.
Article 5(3) (a) (iii) of the Staff Regulations itself provided that "professional training or professional experience of an equivalent level" could only be taken into account where this was justified by the interests of the service. This provision provided for an exception that should therefore be interpreted restrictively by the appointing authority, which assessed the interests of the service on the basis of its discretionary powers. In practice, the important number of candidates fulfilling the conditions set out in Article 5(3) (a) (i) and (ii) of the Staff Regulations limited this possibility.
As regards the recruitment of temporary agents on permanent posts pursuant to Article 2 (b) of the Conditions of Employment, regard should also be had to the fact that these temporary agents were recruited on posts foreseen for civil servants. It thus appeared desirable to assure the coherence between the conditions for the recruitment of civil servants and those for the recruitment of temporary agents for the same post.
As regards the Ombudsman's question whether any temporary agents had been recruited by it on the basis of Article 5(3) (a) (iii) of the Staff Regulations since 1 May 2004, the Commission recalled that it only considered that this possibility should only be used on an exceptional basis. The number of precedents was thus necessarily limited.
However, the Commission confirmed that it did not exclude this possibility a priori, and both as concerns function group AST and function group AD, for which an analogous provision existed. As regards function group AST, two temporary agents had been recruited on the basis of Article 5(3) (a) (iii) of the Staff Regulations after 1 May 2004.
1.1 On 21 December 2006, the Ombudsman opened an own-initiative inquiry concerning the way in which the European Commission interpreted and applied Article 5(3) (a) (iii) of the Staff Regulations of officials of the European Communities (the "Staff Regulations") as regards the admission to competitions or the recruitment of temporary agents under Article 2(b) of the Conditions of Employment of other agents of the European Communities (the "Conditions of Employment")(3).
The Ombudsman decided to open this own-initiative inquiry after comments the Commission had made in the context of an inquiry into a complaint submitted to the Ombudsman had raised questions as to the Commission's position concerning this issue.
1.2 In its opinion, the Commission referred to its large margin of discretion in matters relating to recruitment. It submitted that if the Ombudsman were to express his views on how the Commission applied the relevant rules, this could result in a limitation of the autonomy of the appointing authority in the exercise of its functions. In the Commission's view, such an inquiry would not concern individual cases but the general policy of the institution as regards the application of Article 5(3) (a) (iii) of the Staff Regulations.
As regards the substantive issue, the Commission noted that it had already made it clear that it was far from assuming that Article 5(3) (a) (iii) of the Staff Regulations should never be used as regards the recruitment of a temporary agent on a permanent post. However, it considered that, as a general rule, and as regards function group AST, it was appropriate to require the level of education set out in Article 5(3) (a) (i) and (ii) of the Staff Regulations. Article 5(3) (a) (iii) of the Staff Regulations should only be used on an exceptional basis in individual cases where the assessment of the facts led to the conclusion that it was in the interest of the service to derogate from the general rule. The Commission pointed out that Article 5(3) (a) (iii) of the Staff Regulations itself provided that "professional training or professional experience of an equivalent level" could only be taken into account where this was justified by the interests of the service. In the Commission's view, this provision provided for an exception that should therefore be interpreted restrictively by the appointing authority, which assessed the interests of the service on the basis of its discretionary powers.
The Commission added that although it considered that Article 5(3) (a) (iii) of the Staff Regulations should only be used on an exceptional basis, it did not exclude this possibility a priori. It added that as regards function group AST, two temporary agents had been recruited on the basis of Article 5(3) (a) (iii) of the Staff Regulations after 1 May 2004.
1.3 The Ombudsman considers it useful to recall that Article 195 of the EC Treaty empowers him to inquire into possible instances of maladministration, either on his own initiative or on the basis of complaints. The Ombudsman is mindful of the Commission's large discretionary powers in matters pertaining to recruitment. However, it is clear that maladministration occurs where the administration fails to comply with a rule or principle binding upon it(4). If the general approach adopted by the Commission in this field were to be at variance with the Staff Regulations, this approach would thus clearly constitute maladministration. To put it more clearly, the fact that the Commission refers to its approach in this field as a 'policy' does not prevent the Ombudsman from examining whether it complies with principles of good administration.
1.4 The Ombudsman's concern that led him to open the present inquiry was that it did not appear excluded that the Commission had decided to refrain from using Article 5(3) (a) (iii) and had thus deprived itself of a possibility explicitly foreseen by the Staff Regulations. However, in its opinion the Commission has clarified that this is not the case. The Commission has pointed out that it was far from assuming that Article 5(3) (a) (iii) of the Staff Regulations should never be used as regards the recruitment of a temporary agent on a permanent post. The Ombudsman appreciates the fact that the Commission has thus dispelled any doubts that its previous statements concerning this issue might have raised.
1.5 It is true that the Commission has pointed out that it takes the view that Article 5(3) (a) (iii) of the Staff Regulations should only be used on an exceptional basis in individual cases where the assessment of the facts led to the conclusion that it was in the interest of the service to derogate from the general rule. The Ombudsman considers, however, that this decision falls within the discretionary powers of the Commission in matters pertaining to recruitment and that it is not at variance with the Staff Regulations.
In these circumstances, the Ombudsman considers that there is no maladministration on the part of the Commission. The Ombudsman therefore closes the present own-initiative inquiry.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) Article 2(b) of the Conditions of Employment refers to "staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution".
(2) The text of this decision is available on the Ombudsman's website (http://www.ombudsman.europa.eu).
(3) Article 2(b) of the Conditions of Employment refers to "staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution".
(4) See the Ombudsman's Annual Report for 1997, pp. 22-23 (available on the Ombudsman's website).
