Dear Mrs L.,
On 23 February 1999 you lodged a complaint with the European Ombudsman against the European Commission, concerning an alleged discrimination by the institution for not having admitted you to the competition.
On 31 March 1999, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 9 June 1999, and I forwarded it to you with an invitation to make observations, if you so wished. On 11 August 1999, I received your observations.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were as follows:
The complainant applied to participate in open competition EUR/A/123, but the Selection Board refused to admit her to the tests. In a letter from the Commission's services of 25 February 1998 she was informed that she did not meet the criteria set out for Community civil servants to participate in the competition. The letter explained that by not including any document in support of her statements, the complainant had not followed the requirements of points IV.3 and X.1 of the notice of competition. In an additional reply from the institution dated 16 April 1998, the Commission explained that the complainant had not included any document with her application form in order to prove her status as Community official.
She contested her exclusion on 12 March 1998, pointing out in her letter, that points IV.3 and X.1 of the notice concerned general conditions, whereas the specific conditions applicable to Community officials and other servants, were set out as an Annex to the notice. The complainant explained that the age limit was the only general condition she did not meet. However, as laid down in point 1 of the notice's Annex, Community officials were excluded from that requirement. Furthermore, she claimed that the letter from the Commission had not clearly stated the reasons for rejecting her application.
The complainant added that other candidates with similar conditions had been admitted to the tests, and that her exclusion therefore constituted an instance of discrimination by the Commission. The complainant considered it unreasonable for the Commission to request professional information from its own employees, especially since the institution, as the employer, was in a better position to furnish.
The complainant enclosed with her complaint a copy of a letter from the Commission to another candidate whose identity had been made confidential. The letter informed the candidate of his admission to the tests of the competition, and set another deadline for the presentation of additional documents which could prove his status as EC official. She also added a copy of a competition (COM/A/11-12/98) which was published in the OJ of 31 March 1998 in which similar provisions had been inserted as regards Community officials. However, the text had been more precise and set in details the specific information to be submitted by officials to prove their status.
The complainant concluded that the decision of the Commission excluding her from the competition was illegal and discriminatory, since
(i) Point 5 in the Annex of the competition's notice did not refer to the need to include additional documents, but merely that EC officials and other servants "provide all the information needed";
(ii) Other candidates with the same status had been admitted to the competition and given additional time to furnish additional information.

THE INQUIRY

The Commission's opinion
In its opinion, the first Commission explained the general background of the case. The complainant had applied to participate in open competition EUR/A/123 organized jointly by the European Commission and the Court of Auditors(1).
Point III of the notice of competition laid down the conditions applicable generally to all candidates, whereas point III.C detailed the conditions applicable specifically to Community officials and other agents. In this last case, the provision contemplated a number of derogations concerning age limit, professional experience and diplomas. Point 5 of the Annex states that "it will be for the officials […] applying for the competition to provide all the information needed to show that they meet the conditions of seniority referred to in art. 1, 2 and 3".
The Commission explained that the Guide to candidates taking the competition, published jointly with the notice of competition, indicated that candidates would not be admitted unless they had included supporting documentation with their application form.
Although the complainant had forwarded some additional documentation to the Jury on 12 March 1998 regarding her status as EC official, these documents could not be taken into account since they had been sent after the application date, as set out in point IV.3 of the notice.
As for the additional deadline given to other EC officials who had also applied to the competition, the Commission explained that this possibility had been granted by the Jury only to those EC officials who had already forwarded a prima facie proof of their status.
The Commission concluded by pointing out that in the absence of any element joined to the application form which might have allowed the Selection Board to verify the complainant's status as an EC official, the general age criteria could not be excluded, and thus her application had to be declared inadmissible.
In a separate page added to the Commission's opinion and marked as confidential, the Commission enclosed some additional information for the Ombudsman. The information concerned the number of applicants and those among them who were EC officials. It also referred to the number of EC officials who were not admitted to the tests because they did not include sufficient proof of their status, those who appealed the decision, and the number of officials who were initially admitted under the condition that additional evidence of their status should be sent to the Commission prior to the tests.
The complainant's observations
The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. In her reply, the complainant generally maintained the arguments already stated in the original complaint.
The complainant stressed that she had included in the application form all the personal information required, as well as the data concerning her professional status as a EC official such as her personal number, administrative address and telephone number. She outlined that the information submitted included sufficient elements to show that she met the conditions specified in the Annex to the competition's notice. As for the reference to the Guide to candidates published jointly with the notice, the complainant considered that the Guide, unlike the notice, is merely an information document deprived of any legal value (point B.2 of the Guide).
In the complainant's view, point 5 of the Commission's opinion is contradictory. The Commission had pointed out that it had only accepted those Community officials who had submitted prima facie evidence such as copy of "a certificate of service, copy of the titularisation act, copy of the contract, last salary slip or copy of the ID card". The complainant pointed out that these were the same elements which the Commission had taken into account to provisionally admit to the competition, some EC officials who should provide, at a later stage and before the tests, more evidence as regards their status.

THE DECISION

1 Information to be submitted by Community officials applying to competition EUR/A/123
1.1. The complainant claims that she was improperly excluded from open competition EUR/A/123 since, as a Community official, she forwarded the information required by point 5 of the Annex to the notice of the competition. In her view, the data she included in the application, namely her personal number, administrative address, current post and service, was sufficient for the institution to verify that she met the required conditions of seniority.
1.2. The Commission interpreted that when point 5 of the Annex to the notice referred to "all the information needed", it meant certain documents which by their nature constitute proof of the required seniority. These documents could include, inter alia, a certificate of service, copy of the titularisation act, copy of the contract, or last salary slip.
In support of its interpretation, the Commission pointed out that the Guide to candidates taking the competition, published jointly with the notice of the competition, indicated that candidates would not be admitted unless they had included supporting documentation with their application form.
1.3. As the Community courts have consistently held, the notice of competition forms both the legal basis and the basis of assessment for the Selection Board(2). The purpose of the notice is to give those interested the most accurate information possible about the conditions of eligibility for the post, in order to enable them to judge, first, whether they should apply for it, and secondly, what information is relevant for the proceedings of the Selection Board and must therefore be enclosed with the application.
1.4. The general conditions applicable to candidates to open competition EUR/A/123 were laid down in point III, letters A and B, of the notice of competition. However, specific conditions applied to officials and other servants of the European Communities, as set out in the Annex to the notice. In order to benefit from the exclusions provided for in this Annex, its point 5 stated:

"It will be for the officials and other servants applying for the competition to provide all the information needed to show that they meet the conditions of seniority referred to at 1, 2 and 3".

1.5. The Ombudsman notes that, as illustrated by the complainant and not refuted by the Commission, the wording of similar provisions in ensuing competitions has been modified, and it is now more precise as to the type of evidence that EC officials ought to submit to prove their status. Thus, the Commission now requires that Community officials enclose with their application certain documents such as the certificate of service, copy of the titularisation act, copy of the contract, or the last salary slip.
In contrast, the notice for competition EUR/A/123, which constituted the only legal basis for that competition, only asked EC officials to furnish the necessary information, so that the seniority requirements of the Annex could be verified. Information is a generic term which can encompass documents or copies of them, but also facts being told, heard or discovered.
1.6. The complainant had submitted with her application form information regarding her career as a Community official. Given the nature of the data submitted, the competent Commission services could have easily verified her seniority in the institution.
The Ombudsman is aware that the function of the personnel service of the Commission is not to send to selection boards the complete file of candidates to competitions, since this would impose a heavy burden and, as the Community courts have pointed out, run counter to the principle of proper administration(3). However, in the present case, the Commission services would have only been called to simply verify certain information, as laid down in the notice of the competition.
1.7. The Ombudsman has therefore concluded that by submitting data concerning her personal number, administrative address, current post and service, the complainant had provided the information referred to in the Annex to the notice of competition.
The Commission's failure to ensure that the complainant be admitted to the competition constituted therefore an instance of maladministration.
In view of the conclusion reached by the Ombudsman as regards this previous issue, it is unnecessary to assess the additional claim made by the complainant, namely that she had been discriminated against compared to other Community officials who had been admitted to the competition.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remarks:
2.1. The notice for competition EUR/A/123, which constituted its only legal basis, only asked EC officials to furnish the necessary information, so that the seniority requirements of the Annex to the notice could be verified. Information is a generic term which can encompass documents or copies of them, but also facts being told, heard or discovered.
2.2. The complainant had submitted with her application form information regarding her career as a Community official. Given the nature of the data submitted, the competent Commission services could have easily verified her seniority in the institution.
The Ombudsman is aware that the function of the personnel service of the Commission is not to send to selection boards the complete file of candidates to competitions, since this would impose a heavy burden and, as the Community courts have pointed out, run counter to the principle of proper administration. However, in the present case, the Commission services would have only been called to simply verify certain information, as laid down in the notice of the competition.
2.3. The Ombudsman has therefore concluded that by submitting data concerning her personal number, administrative address, current post and service, the complainant had provided the information referred to in the Annex to the notice of the competition.
The Commission's failure to ensure that the complainant be admitted to the competition constituted therefore an instance of maladministration.
Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.

FURTHER REMARKS

Having assessed the evidence marked as confidential in the Commission's opinion, the Ombudsman concluded that these materials bear no direct relationship with the subject matter of the complaint, and therefore they were not taken into account in the conclusions of this decision.
In the light of the content of these materials, the Ombudsman cannot comprehend the reasoning which might have led the Commission to classify them as confidential. The Ombudsman does not share the Commission's view that public disclosure of statistical information on the number of candidates who were accepted to the competition, the number of EC officials who were not admitted to the tests because they did not include a sufficient proof of their status, or those who appealed that decision, could by any means impinge on the secrecy of the work of the Selection Board.
The Commission's extensive interpretation of secrecy appears rather misplaced if only compared with its announced overarching aim for an efficient, accountable and open administration, able to deliver the quality services European citizens rightly expect.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

---

(1) OJ C 288 A of 23.09.1997, p. 1.

(2) See, T-158/89, Van Hecken v. ESC [1991] ECR II-1341 par. 23; T-54/91, Almeida Antunes v Parliament [1992] ECR II-1739, par. 39.

(3) Case T-133/89, Jean-Louis Burban v Parliament [1990], ECR-II-245, par. 31.