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Rejection by ESMA of an application for a position

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  • Case: 1167/2011/MMN
    Opened on 30 Jun 2011 - Decision on 17 Dec 2012
  • Institution(s) concerned: European Securities and Markets Authority
  • Field(s) of law: General, financial and institutional matters
  • Types of maladministration alleged – (i) breach of, or (ii) breach of duties relating to: Lawfulness (incorrect application of substantive and/or procedural rules) [Article 4 ECGAB]
  • Subject matter(s): Competition and selection procedures (including trainees)
European Securities and Markets Authority
Author: European Securities and Markets Authority (ESMA)
Copyright: European Union / European Securities and Markets Authority

Summary of the decision on complaint 1167/2011/MMN against the European Securities and Markets Authority

The complainant applied for a position as an IT project management officer with ESMA. On 29 April 2011, ESMA informed the complainant that his application for this position had been rejected.

On 30 June 2011, the Ombudsman opened an inquiry into the following allegations: (i) ESMA's decision to reject the complainant's application was based on criteria that were not set out in the notice of vacancy; (ii) ESMA's decision to reject the complainant's application was unfair. Moreover, the Ombudsman included in his inquiry the claim that ESMA should appoint a new selection committee and select applications on the basis of the criteria indicated in the vacancy notice.

On 10 February 2012, the Ombudsman made a friendly solution proposal. Although he found no maladministration as regards the second allegation, he arrived at the preliminary conclusion that the first one was well-founded. As regards the claim, he noted that the selection procedure in question had already been concluded. However, he identified two possible ways of remedying the instance of maladministration. First, ESMA could consider whether the selection procedure should be annulled and whether a new one should be launched. Second, ESMA could consider granting adequate compensation to the complainant for the loss suffered due to the rejection of its application for the vacancy in question. The Ombudsman thus invited ESMA to reconsider the case.

In its reply, ESMA offered to publish a new vacancy notice which was substantively identical to the one which led to the present complaint.

In his observations, the complainant indicated that he was interested in receiving compensation. He also considered that the publication of a new vacancy would not be an adequate remedy because of the differences between the new draft vacancy notice and the original one.

In view of this, ESMA submitted an amended draft vacancy notice. However, the complainant still rejected ESMA's offer.

In his decision, the Ombudsman acknowledged that it had not been possible to reach a friendly solution because the complainant rejected ESMA's offer. The Ombudsman closed the case noting that (i) the complainant made it clear that he would only accept financial compensation; (ii) on the other hand, ESMA offered to take adequate measures to eliminate the instance of maladministration; and (iii) the complainant did not put forward convincing reasons to demonstrate why financial compensation should be preferred.