The background to the complaint

1. The complaint concerns a recruitment procedure carried out by the European Commission for the position of the Executive Director of the European Chemicals Agency ("ECHA"). ECHA was established by Regulation 1907/2006 (known as the "REACH" Regulation)[1] On 9 February 2007, a notice of vacancy concerning the position of Executive Director of the ECHA was published[2]. By decision of 12 September 2007, the European Commission adopted a shortlist of two candidates to be proposed to the Management Board of the ECHA. On 17 December 2007, the Management Board appointed Mr D. as Executive Director of the ECHA.

2. The complainant is a federation of environmental organisations known as the European Environmental Bureau. It considered that the limited number of candidates proposed by the Commission to the Management Board of the ECHA did not provide enough choice for the Management Board. In a letter of 21 September 2007 to the President of the Commission, the complainant submitted a formal request, based on Article 10 of Regulation (EC) 1367/2006[3], for an internal review of the Commission's decision of 12 September 2007. On 12 December 2007, the Directors-General of DG ENV and of Directorate-General Enterprise and Industry ("DG ENTR") informed the complainant that it followed from a combined reading of Article 10, and the definition of "administrative act" in Article 2(1)(g) of Regulation 1367/2006, that the complainant's request for an internal review was inadmissible, since the Commission's decision of 12 September 2007 establishing the shortlist of candidates did not have any external effects within the meaning of the said provisions and could not, as a result, be considered as an "administrative act".

3. On 10 October 2007, Mr Ouzký, Chairman of the European Parliament's Committee on the Environment, Public Health and Food Safety, wrote to Mr Verheugen, Vice-President of the Commission, and to Commissioner Dimas, pointing out that the Committee considered that the Commission's shortlist proposed to the Management Board was "rather short". In his letters, Mr Ouzký also asked whether there had been more qualified candidates and, if so, why they had not been shortlisted. He also referred to what he perceived to be the lack of transparency of the process and asked the Commission how the procedure could be made more transparent and how it could be ensured that the powers of the Management Board were not restricted.

4. By letter of 19 November 2007, Vice-President Verheugen and Commissioner Dimas replied, pointing out that the selection procedure had been in line with the rules and guidelines in force at the Commission for the selection of heads of Community agencies. They confirmed that the two candidates listed by the Commission were the ones who were best suited to exercise the tasks and responsibilities of Executive Director of the ECHA.

The subject matter of the inquiry

5. The Ombudsman understood the complainant to allege, in summary, that the Commission had:

(1) unduly and arbitrarily restricted the range of candidates for the post of Executive Director of the ECHA presented to the Agency's Management Board;

(2) failed to give reasons for its decision of 12 September 2007 concerning the shortlisted candidates;

(3) failed to act in a transparent manner, in particular by not making public the shortlist of selected candidates despite its announcement to the contrary; and

(4) abused its discretion in the matter.

6. The complainant claimed that the Commission should commit itself to ensuring that its future decisions relating to the short-listing of candidates for positions in the ECHA and other similar bodies are taken in a transparent and objective manner with a view to ensuring the legitimacy of, and the public confidence in, the appointment process.

7. As the complainant had not made prior administrative approaches to the Commission with regard to its second allegation, the Ombudsman informed it, in a letter sent on 23 April 2008, that this allegation was inadmissible on the basis of Article 2(4) of his Statute. The Ombudsman therefore asked the Commission to submit an opinion on allegations (1), (3) and (4) and on the claim.

The inquiry

8. On 5 March 2008, the complaint was submitted to the Ombudsman. It was forwarded to the Commission for an opinion, which it sent on 23 July 2008. In its opinion, the Commission did not address the complainant's claim. On 28 August 2008, the Ombudsman therefore asked the Commission to submit an additional opinion on this claim, which it sent on 11 November 2008. Both the original and the additional opinion were forwarded to the complainant for possible observations. However, no observations were received from the complainant.

9. On 5 February 2009, the Ombudsman wrote to inform the complainant that the case had been transferred to another lawyer. The Ombudsman's letter was marked for the attention of Mrs G. (the person who initially submitted the complaint on behalf of the complainant). In his letter, the Ombudsman pointed out that he had not received any observations from the complainant and that, unless such observations were still to be submitted, he would decide on the complaint of the basis of the information already in the file. On 13 March 2009, the Ombudsman's letter was returned to him by the post with a handwritten message on it stating that Mrs G. was no longer working for the complainant. On 16 March 2009, the Ombudsman's Office unsuccessfully tried to contact Mrs G. by e-mail. On 14 September 2009, the Ombudsman's Office managed to contact Mrs G. at her new professional address. She explained that she personally was no longer interested in pursuing the complaint, but suggested that the Ombudsman could contact two of her former colleagues (Mrs F. and Mr S.) who were still working for the complainant.

10. On 14 September 2009, the Ombudsman's Office contacted Mrs F. and Mr S. in order to verify whether the complainant still wished to pursue the complaint. They replied affirmatively. By e-mail of 15 September 2009, the Ombudsman's Office therefore forwarded to Mrs F. and Mr S. all the letters which the Ombudsman had sent to Mrs G. Also, on 30 September 2009, the Ombudsman wrote to the complainant, inviting it to submit observations. On 31 October 2009, the complainant submitted its observations to the Ombudsman.

11. On 28 May 2010, the Ombudsman's Office carried out an inspection of the Commission's file concerning the selection procedure. On 24 June 2010, the Ombudsman sent a copy of the inspection report to the complainant, with an invitation to submit observations by 31 July 2010. No observations were received from the complainant by that date. However, in a telephone conversation with the Ombudsman's Office on 21 October 2010, the complainant made some observations on the inspection report. The complainant had a further telephone conversation with the Ombudsman's Office on 8 November 2010.

12. By letter of 10 November 2010, the Ombudsman informed the Commission and the complainant that he considered it necessary to carry out a second inspection of the file. In an e-mail reply of the same day, the complainant submitted further observations. It also reiterated that it deemed it important that the second allegation, namely, that the Commission had failed to give reasons for its decision of 12 September 2007 concerning the shortlisted candidates, be taken up for inquiry, but added that, if it understood correctly, it needed to raise this allegation first with the Commission before the Ombudsman could inquire into the matter.

13. The second inspection was carried out on 11 November 2010. On 16 November 2010, the Ombudsman sent a copy of the inspection report to the complainant, with an invitation to submit observations by 15 December 2010. In a telephone conversation with the Ombudsman's Office on 6 December 2010, the complainant indicated that it would send a short reaction on the inspection report. However, no such reaction was received. On 16 December 2010, the Ombudsman's Office contacted the complainant again, pointing out that, unless the complainant would still send observations, he would close the case on the basis of the available information. No observations were received.

The Ombudsman's analysis and conclusions

A. Preliminary remarks

14. After examining carefully the arguments which the Commission and the complainant put forward in the course of the inquiry, the Ombudsman takes the view that the first and fourth allegations, namely, the allegation that the Commission unduly and arbitrarily restricted the range of candidates and the allegation that it abused its discretion are closely linked to each other. Therefore, it is appropriate to deal with the first and fourth allegations together. It has also emerged, on the basis of the inquiry, that the second allegation, namely, that the Commission failed to reason its decision concerning the short-listing of candidates, is intrinsically linked to the first and fourth allegations. In sum, it could only be convincingly argued that that the Commission did not unduly and arbitrarily restrict the range of candidates, and that it did not abuse its discretion, if the Commission could show how it arrived at the decision to propose the two candidates suggested to the Management Board of ECHA. The Ombudsman also notes that, in the framework of the inspections, the Ombudsman's representatives specifically asked the Commission representatives questions with regard to the existence of documents which explained - and thus contained reasoning for - the transition from the shortlist of three to two candidates. The Commission representatives replied to these questions making clear that no such documents existed, but that other documents simply recorded the fact that a shortlist of two candidates was proposed by the portfolio Commissioners. Thus, although the Ombudsman did not specifically ask the Commission to provide an opinion on this allegation in the letter opening the inquiry, the Commission has provided its views on the issue concerning the failure adequately to document its reasoning. The Ombudsman therefore considers that it is appropriate, to the extent necessary to deal with the first and fourth allegations, to deal in his analysis below with the issue of lack of reasoning[4].

B. Alleged maladministration in the selection process for candidates

Arguments presented to the Ombudsman

15. The complainant alleged that the Commission had unduly and arbitrarily restricted the range of candidates for the post of ECHA Executive Director presented to the Agency's Management Board, and that it had abused its discretion in the matter.

16. According to the complainant, a shortlist comprising only two candidates did not provide a reasonable range of choices for the Management Board to exercise fully its power of selection and appointment. The complainant stated that it had come to its attention that suitable candidates, who met the eligibility criteria and whose inclusion in the shortlist would have provided a more balanced range of choices for the Management Board, were arbitrarily eliminated by the Commission in the course of the pre-selection procedure. The pre-selection procedure was conducted by the Commission's services with the help of external consultants. The complainant further submitted that, despite reservations expressed by several members of ECHA's Management Board regarding the pre-selection procedure and the minimal number of candidates proposed by the Commission, the Board had chosen a candidate from the Commission's shortlist who was then formally appointed following his hearing by the European Parliament. The complainant emphasised that it did not consider it helpful to challenge this decision of the Management Board as it did not wish to impede the functioning of the Agency at a critical time of its activities. It stated, however, that it was challenging the Commission's decision to establish a shortlist of only two candidates. According to the complainant, this decision clearly had binding external effects as it determined the Management Board's range of choice and unduly restricted the exercise of its discretion in selecting the most qualified candidate.

17. In its opinion, the Commission stated that, according to Article 84 of the REACH Regulation, the Executive Director of the Agency shall be appointed by the Management Board on the basis of a list of candidates proposed by the Commission following a call for expression of interest. The Commission pointed out that, for the establishment of the list, it had conducted a selection procedure in conformity with the Commission Guidelines of 13 May 2005 for the appointment of heads of Community agencies[5] ("the Guidelines"). This selection procedure includes four phases: (i) a pre-selection at the DG level, (ii) an examination by the Consultative Committee on Appointments (CCA) assisted by an Assessment Centre, (iii) an interview by the Commissioners concerned and (iv) the adoption of the shortlist of candidates by the Commission. These selection phases are identical to the ones followed for the selection of Directors in the Commission's services. The multiplicity of steps and actors involved guaranteed a fair and rigorous selection, in conformity with the criteria set out in the vacancy notice. As a result, the list included only those candidates considered to be best qualified to exercise effectively the responsibilities relevant to the post concerned. The Commission concluded that it carried out the selection process in accordance with the rules in force.

18. In its observations, the complainant argued that, according to point 3.6 of the Guidelines, "the pre-selection committee should, as a general orientation, interview between 10 and 15 candidates on the basis of the applications submitted to it". According to the complainant, it was not clear whether this had been the case. The complainant also referred to point 3.7.1 of the Guidelines, according to which "the Commission should submit a list of candidates". It submitted that this meant that more than two persons should be listed. According to the complainant, this was confirmed by the indicative time-table for the selection procedure (Annex II of the Guidelines), which foresaw four weeks for interviews and the establishment of a first draft shortlist and two weeks for each subsequent procedural step. This did not seem reasonable when there were only two candidates. The complainant further recalled that the shortlist should contain between two and four names "depending on the number and the qualifications of candidates applying for the post". It was not clear from the Commission's opinion whether the number and qualifications of the other candidates justified a restricted shortlist. The complainant added that the Commission also did not indicate whether objections were raised in the course of the written procedure leading to the adoption of the shortlist.

The first inspection

19. On 28 May 2010, the Ombudsman's representatives carried out an inspection of the Commission's file concerning the selection procedure. They noted that the Guidelines foresaw that the draft shortlist of candidates was to be established "by the Pre-Selection Committee on the basis of its interviews with the candidates", with the eventual help of an external consultant, but that the Commission's opinion mentioned that it was the CCA, assisted by an Assessment Centre, which examined the candidatures. The Commission's representatives explained that the procedure which had been followed was the following. Once its evaluation ended, the Pre-selection Committee sent its draft shortlist to the CCA. The CCA, assisted by the Assessment Centre, then gave its opinion on the draft shortlist. Thereafter, the next step was the interviews with the portfolio Commissioners, followed by the decision of the Commission. The Commission's representatives further pointed out that there had been in total 34 candidates for the post, of whom 32 had been considered eligible.

20. From the inspection of the documents, it appeared that the Pre-selection Committee had proposed a shortlist of three candidates and that the CCA had confirmed this shortlist. It further emerged that, a shortlist of two candidates had been proposed after the interviews with Commissioners Verheugen and Dimas. The Ombudsman's representatives asked whether there was any document in the file which explained the transition from the shortlist of three candidates proposed by the CCA, to the shortlist of two candidates proposed by the Commissioners. The Commission's representatives explained that there was no such document.

21. Upon their request, the Ombudsman's representatives were provided with a copy of (a) the minutes of the first, second and third meetings of the Pre-selection Committee which took place on 26 April, 1 and 19 June 2007 respectively; (b) the Report of the Pre-selection Committee of 20 June 2007, as well as (c) the Opinion of the CCA of 19 July 2007. The Commission's representatives stressed that these documents were confidential.

Further arguments presented to the Ombudsman

22. In its telephone conversation of 21 October 2010 with the Ombudsman's Office, the complainant indicated that the inspection report did not really contain any further information on how the Pre-selection Committee had worked and did not explain how, bearing in mind that there had been 32 eligible candidates, the shortlist of three candidates had been drawn up.

23. In its e-mail of 10 November 2010, the complainant reiterated that it would like to know why the initial shortlist had comprised the names of only three candidates and why it had then been further reduced to two candidates by the Commission's decision of 12 September 2007. The complainant further pointed out that the role and the decision-making process of the Pre-selection Committee and the CCA was not very clear.

The second inspection

24. At the second inspection, the Ombudsman's representatives pointed out that the minutes of the Commission meeting of 12 September 2007 stated, under point 6.4, that the Commission had decided to approve the shortlist made up of two applicants "as set out at point 4 of PERS(2007)91/2". At the inspection, a copy of this document was provided, together with a copy of the document entitled "ENTR - Adoption of a shortlist for the appointment of the Executive Director of the European Chemicals Agency at Grade AD 15" (91/1). This document was an internal note from DG ENTR which contained the proposal to the College to endorse the shortlist of two candidates recommended by the Portfolio Commissioners. When asked to explain their earlier statement, that there was no document explaining the transition from a shortlist of three candidates to a shortlist of two candidates, the Commission's representatives explained that the above-mentioned documents simply recorded the fact that, after the interviews with the portfolio Commissioners, a shortlist of two candidates had been recommended.

The Ombudsman's assessment

25. Article 84 of the REACH Regulation provides that "[t]he Executive Director of the Agency shall be appointed by the Management Board on the basis of a list of candidates proposed by the Commission following a call for expressions of interest published in the Official Journal of the European Union and in other periodicals or on Internet sites.

The Executive Director shall be appointed on the grounds of merit and documented administrative and management skills, as well as his relevant experience in the fields of chemical safety or regulation. The Management Board shall take its decision by a two-thirds majority of all members with a right to vote. ...".

26. The Guidelines provide under point 3.7.1 that "[t]he Commission should not normally limit itself to proposing only one candidate if it wants to ensure that the Appointing Authority has sufficient choice ... There is, therefore, general agreement to the principle that the Commission should submit a list of candidates from which the relevant body can choose the person it considers to be the most suitable for appointment. This list should consist of between two and four names depending on the number and the qualifications of candidates applying for the post" (emphasis added).

27. It thus follows from both the REACH Regulation and the Guidelines that the appointment of the Executive Director of the ECHA was to be made by the Management Board of ECHA on the basis of a list of candidates proposed by the Commission and that such a list should normally contain between two and four names.

28. In the present case, it appeared from the inspection of the Commission's file that, of the 32 eligible candidates, the external human resources consultant (in its opinion, the Commission referred to this external consultant as the "assessment centre") had recommended 10 candidates for further consideration. The Pre-selection Committee therefore decided that the external consultant should proceed with aptitude tests and preliminary interviews with these 10 candidates. On the basis of the information from the external consultant and of its own analysis of the qualifications and experience of the candidates, the Pre-selection Committee then had interviews with the five candidates which it judged the most suitable. On the basis of these interviews and the marks obtained by the candidates, the Pre-selection Committee adopted, on 20 June 2007, a shortlist of three candidates with the highest scores. The person who was finally appointed Executive Director of the ECHA was included in this shortlist. On 19 July 2007, the CCA then confirmed the shortlist of three candidates proposed by the Pre-selection Committee. The above developments are in conformity with the procedure which is foreseen in the Guidelines[6]. It is true that that Pre-Selection Committee had interviews with only five candidates and not 10. The Guidelines however only prescribe that "as a general orientation", the Pre-Selection Committee should interview between 10 and 15 candidates. On the other hand, the external consultant which assisted the Pre-Selection Committee conducted preliminary interviews with 10 candidates.

29. The Ombudsman notes that, under point 3.6, the Guidelines state that "particular attention [should be paid] to ensure that each and every step in the selection procedure is fully documented" (emphasis added)[7].The Ombudsman notes that, after the interviews with Commissioners Verheugen and Dimas, the Commission decided further to reduce the shortlist from three to two candidates. In sum, the decision to reduce the number of candidates from three to two was based on interviews of the three candidates with the two Commissioners. It is thus clear that the interviews with the portfolio Commissioners was a "step" in the selection procedure.[8]

30. The Ombudsman notes that the Commissioners had a broad margin of discretion as regards their assessment of the candidates. The Commissioners could certainly have based their assessment on factual elements already established during the selection process (the Ombudsman notes that an assessment grid completed by the Pre-Selection Committee and a summary of its conclusions was available), or on other factors following the interviews with the candidates. However, the existence of a broad margin of discretion does not imply that the Commissioners were not obliged to describe how they exercised it.

31. The Ombudsman notes that the Commission also has discretion as regards the precise manner and the precise extent to which it documents the Commissioners' reasoning following the interviews[9]. However, the documented reasoning should at least make evident how the Commissioners arrived at the decision to propose the two candidates suggested to the ECHA Management Board.

32. In sum, when the Commissioners took the decision to reduce the number of candidates from three to two, their reasoning of that decision should have been set out in an appropriate document, such as a note for the file. The importance of such a document should not be underestimated. In its absence, the Ombudsman cannot confirm that the Commission did not unduly and arbitrarily restrict the range of candidates and that it did not abuse its discretion. Likewise, unsuccessful candidates, and the public, cannot confirm that the Commission did not unduly and arbitrarily restrict the range of candidates and that it did not abuse its discretion.

33. There is, however, no indication in the file as regards how the Commissioners arrived at their decision. The Commission's opinion merely mentioned that the Commissioners had confirmed, in a letter of 17 November 2007 to Mr Ouzký MEP, that the two retained candidates were the best fitted to exercise the post[10]. This statement merely confirms the conclusion that the two best candidates were retained, but does not explain the reasoning for arriving at that conclusion. The Ombudsman underlines that, in the absence of any information showing how the Commissioners arrived at the decision to reduce the number of candidates from three to two, how that part of the assessment was carried out simply cannot be established. In sum, the Ombudsman cannot confirm that the Commission did not unduly and arbitrarily restrict the range of candidates and did not abuse its discretion.

34. Since there are no documents in the file which explain the transition from three to two candidates, and the two Commissioners in question have now left the Commission, it is no longer possible to remedy that error. The Ombudsman will thus make a critical remark.

35. The Ombudsman underlines that if the Commission had been able to provide the reasoning for reducing the shortlist from three to two candidates, it would have complied with the rules foreseen in both the REACH Regulation and the Guidelines. In effect, these rules foresee that the list submitted by the Commission to the Management Board of the ECHA should consist of between two and four candidates. In sum, it was entirely reasonable for the Commission to present only two names to the ECHA Management Board provided however that it could demonstrate how it arrived at those two candidates.

C. Alleged lack of transparency and related claim

Arguments presented to the Ombudsman

36. The complainant alleged that the Commission failed to act in a transparent manner. In particular, despite its announcement to the contrary, it failed to make public the shortlist of selected candidates. In connection with this, the complainant also claimed that the Commission should make a commitment aimed at ensuring that its future decisions relating to the short-listing of candidates for positions in the ECHA and other similar EU bodies are taken in a transparent and objective manner and with a view to ensuring the legitimacy of and the public confidence in the appointment process.

37. In addressing the allegation, the Commission stated that the vacancy notice indicated that "[c]andidates should note that, from [the moment of] its adoption by the Commission, the shortlist will be publicly available". It explained that this did not mean that the Commission committed itself to publishing the list. Instead, candidates had been given notice that, after a certain stage of the selection process, the list could be divulged upon request. On the other hand, as the list was transmitted to the ECHA (that is, to a body outside the Commission), in order to complete the appointment process, it fell to a certain extent into the public domain and candidates hence had to be informed that "from its adoption by the Commission, the shortlist will be publicly available".

38. As regards the complainant's claim, the Commission argued that it conducts selection procedures for senior posts in agencies in conformity with the Guidelines which are themselves designed to ensure objectivity and to respect the legitimacy of, and the public confidence in, the appointment process. It pointed out that these Guidelines do not foresee the publication of the shortlists adopted by the Commission. The Commission further stated that, when a shortlist of candidates is adopted in the course of a selection procedure internal to the Commission, the names of the shortlisted candidates are never disclosed, on the one hand to respect the privacy of the candidates and, on the other hand, to guarantee the independence of the Selection Board which, in line with Article 6 of Annex III of the Staff Regulations[11], takes the final appointment decision on the basis of this shortlist. In this context, it is not the Commission's intention to publish the names of the candidates shortlisted throughout the selection procedure for a senior post in an agency. It is the Commission's view that the publication of the names of the candidates would neither add legitimacy to, nor public confidence in, the appointment process.

The Ombudsman's assessment

39. Persons appointed to the highest level posts in the EU institutions and bodies have a very high level of responsibility. Their influence over the formulation and application of public policy is significant. The Ombudsman underlines that, for reasons of accountability, legitimacy and public trust in the EU, its institutions and bodies, and the persons appointed to head those institutions and bodies, it is important that the selection procedures for such posts are conducted as transparently as possible.

40. The Ombudsman notes that the Vacancy notice for the Executive Director of the ECHA published in the Official Journal, under "Selection, appointment and conditions of employment", mentioned that "[c]andidates should note that, from its adoption by the Commission, the shortlist will be publicly available" (emphasis added). In its opinion and additional opinion, the Commission explicitly referred to this statement. The Ombudsman is however not convinced by the Commission's restrictive interpretation of this phrase, according to which the shortlist was not meant to be published. The vacancy notice did not say, as argued by the Commission, that the shortlist would only be available on request. If this had been the Commission's intention, it would not have been difficult to state it as such in the vacancy notice.

41. The Ombudsman notes that, in a telephone conversation with the Ombudsman's Office of 8 November 2010 and in a follow-up e-mail of 10 November 2010, the complainants indicated that it would submit a request for public access to the shortlist and keep the Ombudsman updated about the developments. The complainant has, however, not informed the Ombudsman about the outcome of its request, if it was indeed made. The Ombudsman therefore considers that the complainant no longer has an interest in the Ombudsman's pursuing further its allegation that, despite its announcement to the contrary, the Commission failed to make public the shortlist of selected candidates. No further inquiries are therefore justified into the complainant's allegation.

42. As regards the complainant's claim, and as a matter of good administration in future cases, the Ombudsman considers that it would improve transparency in the selection procedures for all high level posts in the Commission and in the agencies, if the Commission made the shortlist of candidates public upon request, in accordance with the rules set out in Regulation 1049/2001/EC. In this context, he will make the further remark below.

D. Conclusions

On the basis of his inquiry into allegations 1) and 4) of this complaint, the Ombudsman closes it with the following critical remark:

The Commission failed to document the reasoning underpinning the establishment of the shortlist of candidates. This made it impossible to verify that the Commission did not unduly and arbitrarily restrict the range of candidates for the post of ECHA Executive Director and did not abuse its discretion in the matter. This constitutes an instance of maladministration.

There is no need for further inquiries with regard to allegation 3) and the claim.

The complainant and the Commission will be informed of this decision.

Further remark

The Commission should in the future make public, upon request and in accordance with Regulation 1049/2001/EC, the shortlists of candidates it proposes in selection procedures for high level posts in the Commission and the agencies. Candidates should be informed of this policy, in the vacancy notice for these posts.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 21 July 2011

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[1] Regulation 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, OJ 2006 L 396, p. 1.

[2] OJ 2007 C 29 A, p. 1.

[3] Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies, OJ 2006 L 264, p. 13.

[4] Indeed, in its complaint of 5 March 2008, the complainant mentions these three allegations in one single phrase. The last phrase under section 4 of the complaint form ("What do you consider that the EU institution or body has done wrong?") reads: "We consider that the Commission abused its discretion to propose candidates, unduly and arbitrarily restricted the range of candidates presented to the Management Board, and failed to state reasons for its decision".

[5] COM(2005)190 final.

[6] The Commission's statement, in its opinion, that this procedure consists of four phases is not entirely correct and in line with what is set out in the Guidelines.

[7] The Ombudsman notes that the inspection has shown that this was done for the steps of the selection carried out by the Pre-selection Committee.

[8] The Guidelines state that the "on the basis of these interviews[responsible Commissioner] then proposes to the College the list of candidates" (emphasis added)., the

[9] In contrast, the interviews with the Pre-selection Committee must be documented using an assessment grid containing the selection criteria contained in the vacancy notice. The overall conclusions reached by the Pre-selection Committee on each candidate should also be summarised.

[10] In this regards, the Ombudsman again notes that Article 84 of the REACH Regulation provides that "The Executive Director shall be appointed on the grounds of merit and documented administrative and management skills, as well as his relevant experience in the fields of chemical safety or regulation." This general rule should have underpinned all steps in the selection process, including the step involving the Commissioners.

[11] "The proceedings of the Selection Board shall be secret".