Strasbourg, 18 February 2004

Dear Mr H.,

On 20 March 2003, you lodged a complaint with the European Ombudsman against the European Personnel Selection Office (EPSO), concerning the rejection of your application to EPSO in response to a call for expressions of interest for pre-enlargement auxiliary agents.

On 25 February and 5 March 2003, you had lodged a previous complaint with the Ombudsman (reference number 391/2003/JMA) regarding the same subject matter. It was considered inadmissible on 13 March 2003 since, from the information submitted, it appeared that no previous administrative approaches had been made.

On 7 May 2003, I forwarded the complaint to the Director of EPSO. On 26 September 2003, EPSO sent its opinion, which I forwarded to you with an invitation to make observations. I received your observations on 4 December 2003.

I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

The complainant had first lodged a complaint with the Ombudsman against EPSO on 25 February and 5 March 2003. It was registered under file number 391/2003/JMA. The facts of the case were, in summary, as follows:

On 5 January 2003, the complainant submitted his application following a call for expressions of interest for the recruitment of pre-enlargement auxiliary agents, which was organised by EPSO. Upon the publication in the press of some statements made by the Commission's Secretary-General, Mr O'Sullivan, concerning the scope of the competition and the large number of applicants from candidate countries, the complainant sent two letters to the Commission both dated 25 February 2003. In his first letter, he referred to his application and expressed his readiness to have an interview at the earliest possible date. In his second letter, the complainant referred to his concerns regarding the discriminatory nature of the notice of the call for expressions of interest which, in his view, did not treat candidates from the present EU Member States in the same way as those from candidate countries. The complainant believed that the selection procedure was not based on the general merits of the candidates, but rather on certain skills such as their knowledge of languages, for which EPSO was to apply more favourable criteria to nationals from candidate countries. He pointed out that the information which was posted on EPSO's website on 27 February 2003 stated that the language skills were to be evaluated differently depending on whether the candidate was a national of a present EU Member State or from an accession country. The complainant explained that, according to the selection criteria used by EPSO, knowledge of the languages of the acceding countries had to be excellent whilst in the case of languages of the present EU Member States, in particular English, French and/or German, the required knowledge was simply good.

In view of the information submitted by the complainant, the Ombudsman considered that the complaint had not been preceded by the appropriate administrative approaches to the institution concerned as required by Art. 2 (4) of his Statute. The Ombudsman noted that the complainant had only contacted the responsible services in the European Commission on 25 February and 5 March 2003 and that, on the same day, he had lodged a complaint with the Ombudsman. Since the Commission services had not had sufficient time to prepare a reply on his allegations, the Ombudsman declared the complaint inadmissible on 13 March 2003.

On 20 March 2003, the complainant forwarded additional information, including a reply from EPSO's Director, Mr Halskov, to his letters to the Commission. In the reply, Mr Halskov informed the complainant of the criteria applied by EPSO in the selection of candidates, and how these criteria had been applied. Taking into consideration this additional evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference number 0562/2003/JMA), and started an inquiry.

In his new complaint, the complainant repeated his allegation that EPSO's selection criteria as regards linguistic skills were discriminatory. He underlined that the requirement set out in the notice of the call for expressions of interest whereby candidates needed to possess an excellent level of a language from an accession country, but only a good level of English, French or German, was inappropriate and constituted a hidden discrimination. In the complainant's view, this condition discriminated against the candidates from the present EU Member States, who, by and large, do not have a language from one of the accession countries as a mother tongue. The complainant stated that the intended purpose of this clause was to ensure a greater number of successful candidates from the accession countries.

In summary, the complainant alleged that the linguistic criteria applied by EPSO in the notice of its call for expressions of interest favoured the applicants from accession countries and discriminated against nationals of present EU Member States.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO first described the facts of the case. It noted that in 2002, its services issued a call on behalf of the institutions of the European Union for expressions of interest concerning a substantial number of non-permanent posts (principally auxiliary staff) to be filled in 2003. One of the general conditions was that candidates should be nationals either of one of the ten acceding countries or of one of the present EU Member States. They were also required to have a thorough knowledge of at least one of the languages of these ten acceding countries and a good knowledge of English, French or German.

EPSO stressed that these conditions complied with the spirit of Article 28 (f) of the Staff Regulations, which states that an official may be appointed only on condition that he produces evidence of a thorough knowledge of one of the languages of the Communities, and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties.

In this instance, since the aim was to compile a database which would enable the institutions to recruit auxiliary staff to carry out duties relating to preparations for enlargement, EPSO chose to impose this condition based on the Staff Regulations, even though it was not a competition to recruit officials and the Regulations do not lay down any procedure for appointing auxiliary staff.

The eligibility criteria for this exercise reflect the real needs identified by the European institutions as regards the duties relating to preparations for the forthcoming enlargement. The Selection Board was therefore entitled to use as a selection criterion an excellent knowledge of one of the languages of the acceding countries. EPSO added that being a citizen of one of the present EU Member States is not a reason for exclusion. All candidates - whether citizens of one of the present or future Member States- were taken into consideration and judged in the same way. However, it is not surprising that a large number of candidates from the acceding countries were included in the final database since a larger proportion of them satisfied the conditions, including those relating to the knowledge of languages.

Candidates had to fill in the compulsory application form by l0 January 2003 and attach their completed European curriculum vitae. As stated in the 'Guide to candidates' published on EPSO's website, it was up to the candidates themselves to select the languages they knew and to state their level of knowledge. The selection procedure was divided into two parts: pre-selection and interviews. During the first phase, candidates were pre-selected where the content of their application form and curriculum vitae corresponded to the required qualifications and conditions for eligibility. EPSO co-operated with the selectors from the institutions concerned to sort over 25 000 applications and a database of selected candidates was then constituted. This operation was completed on 13 February 2003 and the database was made available to the institutions so that they could consider the applications in the light of their specific requirements. Over 3 000 applications were not entered in the database, mostly because they did not meet the admission conditions, although some duplicate applications and some false ones were detected.

The complainant's observations

In his observations on EPSO's opinion, the complainant repeated the allegations made in his complaint. He added that the criteria set out in the text of the notice of the call for expressions of interest constituted an instance of discrimination, contrary to the letter and spirit of Article 6, II of the Draft Treaty of the European Union, and Article 14 of the European Convention of Human Rights.

THE DECISION

1 Alleged discriminatory nature of EPSO's language selection criteria

1.1 The complainant alleges that the linguistic criteria applied by EPSO in the notice of its call for expressions of interest favoured the applicants from accession countries and discriminated against nationals of present EU Member States.

In the complainant's view, the requirement set out in the notice of the call for expressions of interest whereby candidates needed to possess an excellent level of a language from an accession country, but only a good level of English, French or German, was inappropriate and constituted a hidden discrimination.

1.2 EPSO argues that the conditions of the notice complied with the spirit of the provisions of the Staff Regulations concerning recruitment of officials. The eligibility criteria reflected the needs identified by the European institutions in view of the forthcoming enlargement. The Selection Board was therefore entitled to request an excellent knowledge of one of the languages of the acceding countries. EPSO added that being a citizen of one of the present EU Member States was not a reason for exclusion.

1.3 The Ombudsman notes that the conditions of employment applicable to auxiliary staff, as set out in Articles 1-7, and 51-78 of Regulation (EEC, Euratom, ECSC) No 259/68(1), contain very limited references to the conditions for the engagement of auxiliary staff. In these circumstances, the Ombudsman considers it reasonable for EPSO to refer, by analogy, to the provisions of the Staff Regulations concerning recruitment of officials in dealing with the engagement of auxiliary agents.

According to Article 27, paragraph 2 of the Staff Regulations:

"[Officials shall be selected without distinction as to] race, political, philosophical or religious beliefs, sex or sexual orientation and without reference to their marital status or family situation.

No posts shall be reserved to nationals of any specific Member State."

Recourse to specific linguistic skills for the selection of candidates is, however, permitted depending on the nature of the post to be filled, as recognised in Article 1 (f) of Annex III of the Staff Regulations.

The Ombudsman also notes that the Community courts have held that, whilst the Staff Regulations prohibit the reserving of posts for nationals of any specific Member State, the appointing authority, when recruiting an official, may make its selection dependent upon specific linguistic abilities required in the interest of the service(2).

1.4 Since one of the main aims of the recruitment procedure carried out by EPSO was to prepare for the forthcoming EU enlargement, the Ombudsman finds it reasonable for EPSO to establish criteria giving effect to the view of the responsible appointing authorities that a thorough knowledge of one of the languages of the acceding countries was required in the interest of their services. It appears justified, therefore, that such a requirement based on certain specific linguistic skills was included in the notice of the call for expressions of interest as one of the basic requirements which potential candidates had to possess.

The Ombudsman notes that no evidence has been submitted in the course of his inquiry which may show that EPSO did not apply the same conditions to all applicants. In the Ombudsman's view, the complainant has not established that EPSO discriminated against nationals of present Member States.

The Ombudsman therefore concludes that there appears to be no maladministration in this case.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission; OJ L 56, 4.03.1968, p. 1.

(2) Case 22-75 Berthold Küster v European Parliament [1975] ECR - 01267, par. 13.