The background to the complaint

1. The complainant took part in the Call for expressions of interest EPSO/CAST/27/07, launched by EPSO on 28 March 2007 in order to create a reserve list of candidates to be recruited as contract agents. Candidates could apply for four different function groups. The complainant applied for the function group IV profile of Scientific Adviser with a specialisation in Nuclear Physics.

2. On 30 July 2007, the complainant took the preliminary computer based tests (CBTs) comprising questions on verbal and numerical reasoning, as well as EU knowledge.

3. On 14 September 2007, he was informed that he had been successful in this part of the selection procedure. Therefore, on 14 December 2007, he was invited to perform the specific competence test for the Scientific Adviser profile.

4. EPSO informed candidates during the above competence test that the results would probably be published at the end of March 2008.

5. However, the complainant did not receive any correspondence from EPSO until 1 August 2008, when he was informed that the marking of the selection tests had not yet been concluded and that he would receive his marks by the end of August or mid-September.

6. On 1 September 2008, EPSO informed the complainant of his marks in the competence test. His marks were not sufficient for him to be included in the database of eligible candidates. EPSO provided the complainant with his marks for each of the selection procedure tests.

7. On 19 February 2010, the complainant sent a complaint to EPSO regarding the delay in publishing the final results in the competence test. He claimed "property damage liability" for the material and personal damages that the delay had caused him. In his view, this amounted to EUR 77 000.

8. In its reply of 25 February 2010, EPSO stated that appeals under Article 90(2) of the Staff Regulations must be made within three months of the date of notification of the decision to the person concerned. Consequently, the deadline for appeal had already expired in his case.

9. On 12 March 2010, dissatisfied with this reply, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

10. The Ombudsman decided to open the present inquiry into the following allegations[1]:

1) EPSO failed to issue the final marks of the competition in due time; and

2) EPSO failed to explain the reasons for the delay.

The complainant claimed that:

1) EPSO should pay him the amount of 77 000 Euros for material and moral damages caused by the delay in the issuance of the competition results; and

2) EPSO should explain the reasons for the delay.

The inquiry

11. On 20 April 2010, the complaint was forwarded to EPSO with a request for an opinion on its content by 31 July 2010. Once received, EPSO's opinion was forwarded to the complainant with an invitation to submit observations. The complainant sent his observations on 23 August 2010.

The Ombudsman's analysis and conclusions

A. EPSO's alleged failure to issue the final marks in due time and explain the reasons for the delay, and related claim

Arguments presented to the Ombudsman

12. The complainant argued that EPSO first informed candidates that the final results of their competence tests would be published at the end of March 2008. However, the results were not published until September 2008. In its reply to his complaint, EPSO avoided admitting the undue delay in publishing the results of the competition.

13. In its opinion, EPSO stated that the instructions given to all candidates taking part in the competence tests outlined that the results would probably be published at the end of March 2008.

14. Furthermore, EPSO stated that candidates were informed in the Call for expressions of interest that all general information regarding the competition would be published on its website in the sections entitled "News" or "FAQs". Indeed, prior to the time when candidates were informed of their results, EPSO published three updates on its website regarding the progress of the correction procedure.

15. On 14 February 2008, EPSO also informed candidates that the estimated date for publishing the test results concerning the Scientific Adviser profile would be postponed until the end of April 2008.

16. On 29 May 2008, it explained that, due to the complexity of the correction procedure concerning the tests in the Scientific Adviser and Engineer profiles, the results would be delayed (EPSO did not specify until which date). EPSO also stated that this was due to the need to correct 80 different specialisations in three different languages and that each test had to be corrected by two different correctors.

17. On 3 July 2008, EPSO stated on its website that it would inform candidates as soon as the results became available.

18. Furthermore, on 1 August 2008, candidates for the Scientific Adviser profile with a specialisation in Nuclear Physics were informed individually that the marking of the tests had not yet been completed, but would be finished by the end of August/mid-September. EPSO added that it wished to publish simultaneously the results of all candidates competing for the same profile in their function group.

19. The complainant was informed of his results on 1 September 2008.

20. EPSO concluded that the complainant must have known about the reasons for the delay.

21. EPSO concluded that its delay was due to the difficulty in evaluating tests in 80 different specialisations and in three different languages. It was also necessary to find two correctors for each specialisation.

22. In his observations, the complainant considered EPSO's explanation concerning the delay in publishing the results of the competition to be inadmissible. He pointed out that, by attributing the delay to things such as the number of specialisations and the languages, the institution recognised its incapacity to perform its fundamental tasks in due time.

23. He also stated that EPSO's communications on its website did not provide adequate or sufficient information regarding the correction procedure. These communications were, in addition, issued at long and irregular intervals. The first communication was published 62 days after the competence tests had taken place. The second communication was published 104 days following the date of the first communication, and the third communication was published 35 days after the second. This suggested that there was "administrative chaos" within EPSO.

The Ombudsman's assessment

24. The Ombudsman has carefully examined the Call for expressions of interest EPSO/CAST/EU/27/07 and notes that the section entitled "Communication to applicants" clearly outlined that the results of the CBT tests would be communicated to applicants during the month of September 2007. As regards the competence tests, it only stated that "further information concerning the competence test will be communicated in October 2007."[2] It follows that the deadline for informing candidates of their final results in the competence tests was not established in the Call.

25. EPSO found it useful, however, to inform candidates of the date by which they could expect to be informed about their final results in the competence tests. During the competence tests, EPSO handed candidates a document entitled "Instructions for candidates in the Competence Tests in written form". Under point 5 of this document ("Useful information"), EPSO outlined that "probable dates for publication of results[for] Scientific adviser [would be] End-March 2008". (emphasis added)

26. The above underlined word suggests, however, that the date on which results would be published was deliberately not fixed by EPSO. It therefore cannot constitute a binding administrative deadline.

27. Nevertheless, the deadline in question certainly constituted a promise EPSO made to candidates that it would inform them of their results by the end of March 2008. As such, EPSO should have complied with the deadline. However, EPSO informed candidates of their results six months later, in September 2009. The time needed by EPSO to inform candidates of their results was therefore excessive.

28. EPSO put forward the following reasons in order to justify why it did not comply with its promise: (i) the number of specialisations in which the tests took place was high; (ii) it needed to find two correctors for the tests in each specialisation who could mark them in the language chosen by the candidate (there were three languages possible) and (iv) all tests had to be checked before the results could be published. The Ombudsman will assess each of EPSO’s reasons below.

29. First, the Ombudsman finds it reasonable for EPSO to publish the results of all candidates in a specific profile at the same time. Therefore, all tests needed to be checked before the results were published.

30. The Ombudsman further notes that, in the field relevant to the complainant's profile, the competence tests were indeed highly specialised. They thus had to be checked by experts in the relevant specialisation. For instance, in the complainant’s specialisation Nuclear Physics, the following questions had to be answered by candidates: (i) What are the current major issues and challenges in the field of Nuclear Physics? (ii) On the basis of your experience to date, how can you contribute to the future development of the field of Nuclear Physics?; (iii) Describe the principles involved in radioisotope production with both cyclotron accelerators and nuclear reactors, and give some examples of medical radioisotopes and their applications. It should also be noted that the answers had to be drafted in the form of an essay of a maximum of 250 words. The Ombudsman is not aware of how many candidates were tested for each specialisation. Nevertheless, it is evident that the amount of work expected from the experts was considerable.

31. Moreover, EPSO's task to identify two experts for each specialisation who could understand the language chosen by candidates was certainly not easy. If one expert could only mark one specialisation test, EPSO would have needed to engage a total of 160 experts for each specialisation (two correctors for each of the 80 specialisations). In addition, if three different languages were chosen for the tests in each specialisation, and assuming that each expert worked in one language only, it appears that EPSO would have needed to mobilise 480 experts.

32. The Ombudsman thus agrees with EPSO that a considerable amount of time was needed to find experts and then for the experts to complete their work before the test results could be published.

33. However, EPSO already knew the number of candidates for each profile, their specialisation and the language of the tests (the language chosen in the CBTs) in September 2007, when the candidates were informed that they had qualified for the relevant competence test. It would thus have been prudent for EPSO to have, on the one hand, started looking for the relevant experts on that date and thus have had a list of available experts by December 2007, when the competence tests actually took place. If EPSO had required more time to find such experts, it could have taken this into account when establishing the deadline in question. If EPSO had found enough experts by December 2007, they could have had three entire months (until the end of March 2008) to mark the tests. On the other hand, if EPSO had consulted the experts identified by December 2007 on how much time they needed to mark the tests, EPSO could have better predicted the probable date when the results would be published. As a result, candidates would have received a feasible, albeit not legally binding, deadline in the instructions. Apparently, EPSO failed to do all of the above.

34. In light of the foregoing, the Ombudsman cannot accept EPSO’s justification as to why it did not comply with its promise that the results of the tests would be published by the end of March 2008. This body was created and entrusted with only one task: to organise selection competitions. Citizens may thus legitimately expect EPSO to act with prudence and care when doing so. The principles of good administration require that the institutions should comply with their own public promises. Reasons of administrative convenience cannot objectively justify their failure to do so.

35. In this context, it is also hard to understand, as the complainant rightly pointed out in his observations, why EPSO needed to inform candidates about the delay on three consecutive occasions if the number of the tests to be checked under each specialisation had not changed since December 2007.

36. The Ombudsman considers therefore that EPSO failed to justify why it did not comply with its own deadline for candidates to be informed of their results in the competence test, that is, the end of March 2008. This was an instance of maladministration. The fact that EPSO kept informing candidates that the results were delayed cannot attenuate this failure.

37. Since the complainant claimed financial compensation, which, as stated in paragraphs 41-44 below, the Ombudsman does not find justified, he cannot identify and propose any possible friendly solution. He will therefore close the case with a critical remark.

B. Claimed compensation

38. The complainant claimed that EPSO should pay him compensation totalling EUR 77 000 for material and moral damages caused by the delay. He explained that this amount was obtained by adding the expenses invested in preparing and completing the competition and the estimated moral damages caused by awaiting the results.

39. In its opinion, EPSO took the view that payments can be made by its administration only on the basis of a right "recognised either by law or a court." Furthermore, the fact that a candidate is included on a reserve list does not grant him the right, but rather the possibility of being hired. Therefore, pecuniary compensation is not justified for a rejected candidate.

40. In his observations, the complainant reiterated that EPSO's delay in communicating the results of the competitions had affected his professional interests and that he should therefore be compensated for it.

The Ombudsman's assessment

41. The Ombudsman takes the view that the complainant did not substantiate his claim.

42. If the complainant’s claim were based on material damages, if any, resulting from his professional/personal decisions taken in the expectation that he would be successful in the Call, or if his claim were established on the basis of the wages he expected to have received if he worked in the institutions after succeeding in the Call, the Ombudsman does not see any causal link between the delay in question and the fact that he was not successful in the competition. Moreover, as rightly pointed out by EPSO, any potential success in the competition does not guarantee recruitment.

43. The Ombudsman may understand the complainant’s uncertainty when waiting for months for the results of tests, but such uncertainty is not sufficient to establish moral damage giving right to compensation.

44. For the above reasons, no further inquiry is justified as regards the complainant’s claim on compensation.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

EPSO failed to justify why it did not comply with its own deadline to inform candidates of their results in the competence tests.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 February 2011

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[1] The complainant submitted three allegations in total. The Ombudsman excluded from his inquiry the allegation that EPSO wrongly invoked the Staff Regulations when replying to the complainant’s administrative approaches. The Ombudsman explained to the complainant that, although he does not work for the institutions and he is not therefore obliged to use the Article 90 Staff Regulations procedure, the relevant case law gives him such an option. Prima facie, therefore, it did not seem unreasonable for EPSO to have treated this complaint as an Article 90 Staff Regulations complaint.

[2] http://europa.eu/epso/success/cast/cast27/call/index_en.htm