The background to the complaint

1. The complaint concerns a dispute about the grading of a member of staff. On 15 September 2008, the Council of the European Union ('the Council') established a monitoring mission in Georgia, known as 'MISSION EUMM Georgia'[1]. International civilian staff and local staff recruited for MISSION EUMM Georgia were graded from grade 1 to 28 on the basis of their function and professional experience. "Experts", such as political advisers, Heads of Cabinet, Heads of Finance and Administration teams, and Heads of Procurement teams, were graded from grades 22 to 28[2].

2. On 7 October 2008, the complainant was selected for the post of Chief Procurement Officer. According to the complainant, the Head of Administration and Finance of MISSION EUMM Georgia "offered" him grade 28, step 1, since he was understood to have more than 24 years of relevant professional experience. However, when he took up his duties on 21 October 2008, he was informed that the Commission did not agree with the grading offered to him, and that it had requested that he should provide additional supporting documents. Finally, the Commission graded him at grade 26. The complainant disagreed with this grading and turned to the Ombudsman.

The subject matter of the inquiry

3. The complainant alleged that the Commission failed to assess correctly his professional experience and did not give reasons for its decision not to recruit him at grade 28.

4. The complainant claimed that the Commission should re-examine his curriculum vitae and certificates, revise his grading, and authorise the Council to recruit him at grade 28.

The inquiry

5. On 14 December 2008, the complainant turned to the Ombudsman. On 20 January 2009, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which sent its opinion to the Ombudsman on 13 May and 23 June 2009. The opinion was forwarded to the complainant, who submitted his observations on 15 July 2009.

6. On 9 September 2009, the Ombudsman requested further information from the Commission regarding the complainant's professional experience. On 26 October 2009, the Commission replied to the Ombudsman's request. The Ombudsman forwarded the Commission's reply to the complainant and invited him to make observations. On 23 December 2009, the complainant sent his observations.

7. On 17 September 2010, the Ombudsman addressed a proposal for a friendly solution to the Commission. On 16 December 2010, the Commission replied to the friendly solution proposal. Its reply was forwarded to the complainant, who did not submit observations.

The Ombudsman's analysis and conclusions

A. Alleged failure to assess correctly the complainant's grade and to give reasons for its decisions and related claim

Arguments presented to the Ombudsman

8. The complainant stated that he sought clarification regarding his grading by e-mail of 14 October 2008, that is, prior to taking up his duties as Chief Procurement Officer for MISSION EUMM Georgia. MISSION EUMM Georgia agreed that his grade should be 28, step 1. However, the Commission disagreed with this grading, and took the view that his grade should be 26, step 1. Grade 26, step 1 corresponded to between 16 years and 20 years of relevant professional experience.

9. The complainant disagreed with the Commission's view. He considered that the following professional experience, which amounts to more than 28 years, should be deemed to be "relevant" professional experience:

- from August 1980 to January 1989, advisor in the French Ministry of Agriculture;

- from February 1989 to January 1992, desk officer in the European Commission;

- from February 1992 to March 1999, office manager and consultant in a consulting company;

- from April 1999 to November 2003, administrator and administrative and financial director in the private sector;

- from December 2003 to October 2008, independent consultant.

10. He argued that he provided the Commission with all the documents requested, namely, a detailed curriculum vitae and certificates from previous employers. He further argued that, contrary to what the Commission stated, these certificates indicated that he worked full-time on procurement-related issues.

11. The complainant noted that the Commission recognised only 16 years of his professional experience as being "relevant", without explaining to him what was and what was not considered to be relevant. He also explained that he had not been able to sign his contract until 9 December 2008, and that he had not been paid in the meantime. He claimed that the Commission should review its decision.

12. In its opinion to the Ombudsman, the Commission explained that the complainant participated in an EU mission financed under the Common Foreign and Security Policy (CFSP) budget. The implementation of the CFSP budget is the Commission's responsibility and, in carrying out this task, it takes into account the principles of sound financial management.

13. Given the unique structure of CFSP missions, their limited duration, the precarious conditions in the field and the overall need for quick deployment and operability, the Council entrusts the Head of a CFSP Mission with the recruitment and employment of the staff needed for the implementation of the objectives set by the Council. A CFSP Special Adviser's contract with the Commission foresees that the Head of Mission shall conclude contracts of employment on his own behalf, applying the rules for staff employed by, or seconded to, Special Advisers, as set out in the Commission Communication on Specific Rules of Special Advisers, entrusted with the implementation of operational CFSP actions, and contracted international staff ('the Communication')[3].

14. The employment contract for international staff is subject to the labour and social laws of the employee's country of citizenship/permanent (fiscal) residency before taking up his or her duties. It is signed by the CFSP Special Adviser on his own behalf. In deciding upon the remuneration of the international staff, the CFSP Special Adviser classifies the persons concerned by category and step, taking into account the relevant professional experience of the persons concerned. In so doing he or she applies Annex 2 to the Communication. Any person employed as international staff is recruited at the initial step of a given category.

15. The Commission further explained that the complainant was offered employment by the Head of MISSION EUMM Georgia from 21 October 2008 until 14 September 2009. In a letter dated 14 October 2008 and addressed to the Commission, the Head of MISSION EUMM Georgia proposed to grade him at level 28, step 1. In its replies of 20 October and 19 November 2008, the Commission asked the Head of MISSION EUMM Georgia to send a more detailed curriculum vitae regarding the complainant, and confirmation, from some of the previous employers mentioned in the curriculum vitae, of the complainant's assignments in the field of public procurement. It also asked to be informed of the proportion of the complainant's overall responsibilities relating to public procurement. On the basis of the information received, the Commission assessed the relevant experience as amounting to more than 16 years. Therefore, it sent a letter to the Head of MISSION EUMM Georgia, recommending that the complainant be graded at level 26. Furthermore, the Commission explained that it had not been possible to carry out a more substantial review of the grading due to the fact that only part of the requested information had been provided, and the confirmation received had not indicated, as requested, what proportion of the complainant's assignments was devoted to the field of procurement. The confirmation received from his previous employers mainly indicated that the complainant was only partially involved in procurement.

16. The Head of MISSION EUMM Georgia, using the discretionary power granted to him in the Communication, awarded an additional grade to the complainant, taking into account "specific organisational responsibilities associated with the post to which a person is recruited". This gave a final grading of 27, step 1. On 20 February 2009, the complainant resigned, with effect as of 22 April 2009.

17. In his observations, the complainant repeated that the Commission failed to assess his professional experience correctly. He noted that the Commission did not explain what it considered to be "relevant" professional experience. He also said that the certificates he provided referred to full-time work.

18. He further noted the Commission's statement that his employment contract was governed by French law. In his view, according to French labour law, the "promise" made on 14 October 2008 by the Head of MISSION EUMM Georgia to recruit him at grade 28, step 1, was equivalent to a contract. He considered that the Commission should pay him the difference in salary between grade 27 and grade 28, and the difference in the removal allowance, namely, a total amount of EUR 5 250.

19. In its further opinion, the Commission provided a table detailing the complainant's professional experience which it had taken into account. From the information contained in the table, the Commission concluded that the complainant had 16 years of relevant professional experience.

20. The Commission further stated that the experience which was partially considered related to assignments which were only partially related to the tasks that need to be fulfilled by the Chief Procurement Officer, and they represented only a part of the overall responsibilities of the complainant. The complainant was asked to provide specific information to indicate what proportion of his overall responsibilities procurement activity had represented in his previous assignments. This information was never received. Therefore, the Commission took the view that no more than a third of the tasks carried out in these posts related to the tasks of a Procurement Officer. The Commission finally underlined that procurement carried out in the private sector is different from procurement in the public sector, in particular in the context of the EU public sector.

21. The Commission considered the complainant's previous employment, when he worked as a journalist, as a food processing engineer, as an institutional expert, and as a team leader in charge of an environmental audit, to be irrelevant for the post of Chief Procurement Officer.

22. In his further observations, the complainant noted that the Commission failed to reply to his statement regarding compliance with French labour law. He further noted that the Commission again refused to take into account the four certificates he provided for the period from August 1980 to November 2003, which clearly state that his professional activities were entirely devoted to buying goods and services. He disagreed that his experience in procurement in the private sector was irrelevant.

23. Finally, he pointed out that, for the period from 1989 to 1992 (when he worked at the Commission), the Commission seemed to be unaware of its own activities. He also disagreed with the Commission's statement regarding the difference between procurement procedures in the public and the private sectors. He specified that, in January 2005, when he worked as a team leader for the 'Banque Africaine de Développement', he worked in the public sector, and not in the private sector. Therefore, he challenged the Commission's assessment of his curriculum vitae, claiming that it had made an arbitrary decision in considering that only one third of his professional experience was relevant. He wondered why the Commission did not decide to consider, for example, that two thirds, or 1/10 of this experience was relevant. He maintained that he had worked full-time on procurement issues.

24. In conclusion, he asked the Commission to pay him EUR 5 250, plus interest, for late payment.

25. In an e-mail of 6 May 2010 to the Ombudsman, the complainant argued that all of his professional experience gained from 1980 to 2008 should be considered as "relevant" and not as partially relevant.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

26. The Ombudsman noted that, in an e-mail of 14 October 2008, the Head of the Administration and Finance of MISSION EUMM Georgia stated that he had "offered" the complainant grade 28, step 1. The first question which had to be answered, in this context, was whether the Commission breached any of the complainant's legitimate expectations when it reviewed this offer.

27. The Ombudsman pointed out that, according to the relevant case-law on legitimate expectations, three conditions must be satisfied in order to claim that a basis for legitimate expectations exists. First, precise, unconditional, and consistent assurances must be made by authorised and reliable EU authorities. Second, the assurances must be such as to give rise to a legitimate expectation on the part of the addressee. Third, the assurances given must comply with the applicable rules[4].

28. First, the Ombudsman noted that, on 7 October 2008, when the Council informed the complainant that he had been selected for the post of Chief Procurement Officer, it specified that his remuneration would be verified by the Commission on the basis of his curriculum vitae. The complainant was, therefore, informed that the Commission would have to verify any remuneration package proposed to him before that package could become definitive.

29. Second, the "offer" made to the complainant on 14 October 2008 originated from the Head of the Administration and Finance Unit of MISSION EUMM Georgia[5], who was certainly entitled to make an initial proposal in relation to the complainant's grading, and to make a definitive decision on the grading after having consulted with the Commission. This person was not, however, authorised to make any definitively binding arrangement with the complainant without first consulting the Commission. The Ombudsman accordingly took the view that the "offer" of 14 October 2008 did not come from an authorised and reliable source within the meaning of the applicable case-law. Therefore, the complainant could not claim that this e-mail gave rise to any legitimate expectations.

30. It remained to be determined whether the Commission correctly assessed the complainant's professional experience. The Ombudsman understood the Commission's assessment of the complainant's professional experience to be as follows:

PERIOD			COMPANY	FUNCTION	Experience taken into consideration for grading
					Fully relevant	Partially relevant	Not relevant
	FROM	TO			YEARS	YEARS	YEARS
1	11/2007	08/2008	Commission Delegation	Technical advisor on EU procurement procedures	0.83	0	0
2	10/2007	10/2007	Consulting company	Consultant/institutional expert	0	0	0.08
3	07/2007	10/2007	Commission Delegation	Technical advisor on procurement procedures	0.25	0	0
4	10/2006 06/2006 02/2006	06/2007 08/2006 04/2006	Commission Delegation	Technical advisor on EU procedures	1.25	0	0
5	09/2006 05/2006	09/2006 05/2006	Consulting company	Team Leader (environmental audit)	0	0	0.16
6	03/2005 08/2004	08/2005 12/2004	Consulting company	Technical advisor on EU procedures	0.92	0	0
7	02/2005	02/2005	Consulting company	Consultant	0.08	0	0
8	01/2005 12/2003	01/2005 07/2004	Finance institution	Team Leader	0	0.75	0
9	04/1999	11/2003	Private company	Administrative and Financial Director	0	4.66	0
10	02/1992	03/1999	Consulting company	Office Manager and Consultant	7.17	0	0
11	02/1989	01/1992	European Commission	Desk Officer	0	3	0
12	03/1979	01/1989	Ministry of Agriculture and Ministry of Foreign Affairs	Advisor	0	9.92	0
13	04/1978	02/1979	Newspaper	Journalist	0	0	0.83
14	09/1977	03/1978	Private company	Food Processing Engineer	0	0	0.66
	Total				10.5	18.33	1.73
	Total relevant professional experience				16.61

31. The Ombudsman noted that the following periods and type of professional experience, referred to in the complainant's curriculum vitae, were not taken into account by the Commission when it determined his grade:

- period (2) - Consultant/Institutional expert

- period (5) - Team Leader (environmental audit)

- period (13) - Journalist

- period (14) - Food Processing Engineer.

The Commission explained that these assignments were not considered to be relevant for the post of Chief Procurement Officer. The complainant did not appear to contest this statement. According to the job description of the post of Chief Procurement Officer, as well as the information provided by the complainant in his curriculum vitae, the Ombudsman did not consider that the Commission made a manifest error in its assessment of the above-mentioned periods.

32. The Ombudsman noted that the following periods and type of professional experience were only partially taken into account:

- period (8) - Team Leader in a regional multilateral finance institution

- period (9) - Administrative and Financial Director in a private company

- period (11) - Desk Officer at the European Commission

- period (12) - Advisor to the French Ministry of Agriculture and the French Ministry of Foreign Affairs

33. First, the Ombudsman understood the term "relevant professional experience" as meaning any experience that contributes to the ability of the person to carry out the functions listed in the job description. Experience, specifically in public procurement, is of course relevant for the position of Chief Procurement Officer. However, the Ombudsman's view was that other kinds of experience, such as experience in management, or in human resources, might also be relevant for such a position; or experience in specialised areas, such as environmental control.

34. The Commission also underlined that procurement carried out in the private sector is different from procurement in the public sector, in particular in the context of the EU public sector procurement. While this is certainly true, this does not imply that such experience would not contribute to a person's ability to carry out tasks in the public sector. Indeed, diversity of experience might, in an overall assessment of a person's ability, actually constitute an advantage.

35. The Ombudsman also pointed out that the Commission itself has, for its own internal human resource management purposes, introduced a system of mobility for high-level posts. This system of mobility implicitly recognises that high level managers benefit from a diversity of experience.

36. In light of the above, the Ombudsman found that the Commission's understanding of "relevant professional experience" was excessively formalistic in the complainant's case. As regards periods (2) and (5), for example, even though the complainant did not work exclusively on procurement issues, his experience during period (2) in Afghanistan, and during period (5) in environmental audit, may have been relevant for a position of Chief Procurement Officer in Georgia. The same applies for periods (11) and (12), during which the complainant worked at the Commission and in two French Ministries. The Ombudsman noted in this regard that the MISSION EUMM Chief Procurement Officer's main tasks listed in the job description included liaising with other relevant institutions and organisations acting in the field, and developing professional relationships and work partnerships with the Commission. The Ombudsman further noted that, besides qualifications and experience in procurement issues, MISSION EUMM Georgia was looking for a candidate familiar with European Union legislation and regulations, experienced in the financial management of tendering procedures and audits, as well as having international experience, particularly in crisis management.

37. The Ombudsman further noted that the Commission asked the complainant to provide confirmation of the precise proportion of his assignments which related to the field of procurement. Since this information was never received, the Commission took the view that no more than a third of the activities was relevant to the post of Chief Procurement Officer.

38. The Ombudsman noted that the Commission did not indicate how it arrived at the conclusion that one third of the above-mentioned experience was relevant. The decision to consider one third of this experience as relevant for the post, rather than any other proportion, appeared, therefore, to be purely arbitrary.

39. The Ombudsman noted that, in relation to those positions in which only part of the complainant's professional experience was considered relevant, the Commission asked to be informed of the precise proportion of the complainant's overall responsibilities which concerned public procurement. The Commission explained that, despite its request, the information it received concerning the complainant's experience did not indicate exactly how much of the complainant's work was devoted solely to public procurement. It then stated that, as a result, it was not possible to carry out a "more substantial" review of his grading[6].

40. The Ombudsman took the view, however, that the information which the Commission demanded from the complainant in order to allow it to carry out "a more substantial review" is information which the complainant cannot reasonably be expected to provide. Employers in both the public and private sectors do not normally determine the tasks of employees and officials in terms of exact percentages in order to designate the precise proportion of an employee's or official's work to be devoted to specific tasks. The Ombudsman underlined, in this regard, that one of the complainant's positions was at the Commission itself (as a desk officer (period 11)). The Ombudsman doubted whether the Commission itself would be able to provide the complainant with a certificate which would show the exact proportion of public procurement responsibilities the complainant had carried out and would therefore comply with the Commission's own request to be informed of this proportion[7].

41. In light of the above, the Ombudsman made the preliminary finding that the Commission committed an instance of maladministration by adopting an overly formalistic view of what constitutes relevant professional experience, and by requiring the complainant to provide the exact proportion of his overall responsibilities which were dedicated to public procurement during periods (8), (9), (11) and (12). He therefore made the following proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman:

"Taking into account the Ombudsman's above-mentioned findings, the Commission should review its decision concerning the complainant's professional experience, and consider his experience gained during periods (8), (9), (11) and (12) as fully relevant for the post of Chief Procurement Officer."

The arguments presented to the Ombudsman after his friendly solution proposal

42. The Commission did not agree with the Ombudsman's preliminary finding of maladministration. The Commission provided further information and clarifications on the case because, in its view, the solution proposed by the Ombudsman might undermine the entire system of grading international contract staff working in the framework of European Safety and Defence Policy (ESDP) missions. Moreover, in the Commission's view, such a solution carries a legal risk of challenging the principles of equal and fair treatment of the staff in the above mentioned missions.

43. First, the Commission provided clarifications on the expression "relevant professional experience". The Ombudsman's understanding, according to which it means "any experience that contributes to the ability of the person to carry out the functions listed in the job description", seems, the Commission argued, to be only partially valid. The assessment of the relevance of a person's previous experience cannot be based only on the functions listed in the job description; it also needs to be carried out in the context of qualifications and expertise required for the post. In accordance with the job description of Chief Procurement Officer, the following qualifications were specifically required for the job:

- experience in contracting and procurement related matters,

- experience in using legally established professional and transparent procurement policies and procedures in accordance with European Union legislation and regulations,

- experience in financial management of tendering procedures and audits, preferably including EU procedures.

For all posts in the EUMM MISSION Georgia, candidates were required to have international experience, preferably in crisis management.

44. It is not without reason that the tasks, qualifications and expertise required for the persons employed in ESDP Missions are so precise and specific. While the Commission is convinced of the advantages of the diversity of experience, the context in which the ESDP Missions need to operate should be taken into account. ESDP Missions are set up on an ad hoc basis in crisis situations. Their unique structure, the precarious conditions in the field and the need for immediate operational ability makes it of prime importance to deploy staff that have the required expertise and who can be operational in this specific context from the very beginning.

45. Second, the Commission examined in detail the complainant's previous assignments during periods (8), (9), (11) and (12), which the Ombudsman sees as fully relevant to the tasks required for the post of Chief Procurement Officer.

46. The experience gained by the complainant during period (8) refers to the period during which he worked as team leader in a finance institution, where his tasks included: assisting the Ministry of Agriculture in its administrative restructuring and decentralisation, drafting the organic law and guidelines of administrative procedure, designing and implementing the training plan for the Ministry's staff at central and regional level, project management and procuring supplies relating to the restructuring of the Ministry (cars, IT equipment, generators and so on). This post included a wide range of responsibilities. The complainant was thus not working full time on procurement.

47. The experience gained by the complainant during period (9) refers to the period during which he was employed as Financial and Administrative Director in a private company and was in charge of financial and administrative monitoring. This included textile production, textile imports/exports, room perfumes production and distribution and information systems. The certificate provided from the employer indicated that the complainant was in charge of purchases and management control for different projects and companies in the group. As in previous cases, only a partial link with the tasks and experience required for the post of Chief Procurement Officer was identified. The Commission noted that procurement in the private sector is different from procurement in the public sector, in particular in the EU framework.

48. The experience gained by the complainant during period (11) refers to the period during which he worked in the European Commission and was responsible for relations in the area of development aid with Haiti/Dominican Republic/Central America, Pakistan and then India. His responsibilities included, among others, defining the European Commission's strategy with the concerned countries, preparing financial and technical assistance projects and the follow-up regarding the implementation of these projects. As in the previous case, an indirect link to the procurement was identified in the tasks relating to the preparation of financing decisions and participation in evaluation committees. However, these assignments constituted a part in the overall responsibilities and they are only indirectly linked to the tasks required from the Chief Procurement Officer in the EUMM MISSION Georgia.

49. The experience gained by the complainant during period (12) refers to the period during which he worked as Advisor in the French Ministry of Agriculture, where he was responsible for bilateral relations between France and the following countries: Africa/Maghreb, Africa/Maghreb/USSR, then Maghreb/USSR/Brazil. His responsibilities included providing advice on the international agricultural policies, advising other departments on the follow-up of exports of agricultural commodities and technologies, preparing trade and cooperation agreements, and advising the private sector on investment promotion, exports and the transfer of technologies. The partial and indirect link with procurement during this assignment was identified in the tasks relating to the management of a budget line and participation in the selection of external contractors. In this context, the Commission took the view that it cannot be argued that, during this assignment, the complainant was carrying out the tasks specified under the job description of Chief Procurement Officer on a full-time basis.

50. In sum, the Commission took the view that, in all these assignments, the tasks relating to procurement constituted only a part of the complainant's various responsibilities. In this context, the Commission held that accepting a part of one's responsibilities relating to procurement as being relevant for the complete period challenges the principle of equal and fair treatment towards persons who previously worked full time on procurement-related issues and acquired all necessary qualifications and skills to carry out the tasks of Chief Procurement Officer.

51. The Commission asked the complainant to provide a detailed curriculum vitae in order to enable it to examine the relevance of his previous experience. On this basis, an appropriate assessment together with a quantitative analysis was conducted in order to establish the grade of the complainant. Since the complainant did not find the Commission's decision satisfactory, he was asked to provide a statement from certain employers certifying his previous assignments in procurement and the corresponding percentage ratio against the overall responsibilities. While the Ombudsman took the view that "determining the tasks of employees in terms of exact percentages" is information which the complainant cannot reasonably be expected to provide, the Commission would like to underline that, beside the percentage ratio, information on the complaint's assignments in procurement was also requested. All three statements proved that his responsibilities in the field of procurement formed a part of his overall responsibilities and, in two cases, were only indirectly linked. On this basis, the Commission argued that the complainant did not carry out on a full-time basis the tasks required under the job description of Chief Procurement Officer in the MISSION EUMM Georgia. It concluded that there was no basis to review the complainant's grading.

The Ombudsman's assessment after his friendly solution proposal

52. The Ombudsman regrets that the Commission was unable to accept his proposal for a friendly solution, thereby missing an opportunity to put right an instance of maladministration. He would like to stress that acceptance of a friendly solution proposal does not entail an admission of legal liability and does not create a legal precedent.

53. The Commission considers that the proposal for a friendly solution might undermine the entire system of grading international contract staff participating in ESDP missions. It also takes the view that the proposal for a friendly solution carries a legal risk by challenging the principles of equal and fair treatment of staff. The Ombudsman underlines that his proposal for a friendly solution sought specifically to ensure that the principles of equal and fair treatment are respected. He notes that, if the present system of grading leads to situations where those principles are not respected, it is the very role of the Ombudsman to draw attention to this situation and to suggest means of improving it.

54. As a preliminary point, the Ombudsman does not call into question the need to ensure that staff possess the required expertise to be operational in the specific context of ESDP missions from the very beginning. The Ombudsman notes, in this context, that the complainant was in fact employed as the Chief Procurement Officer in the ESDP mission. He notes and indeed underlines that, it is nowhere suggested that the complainant did not have the required expertise to be operational in that role from the very beginning. The present complaint relates only to the issue of the complainant's grading while he carried out that role. The issue of his grading was dependent on an assessment as to how well he complied with the requirement to have the "necessary qualifications and skills" to carry out the tasks of Chief Procurement Officer.

55. The Commission is of the opinion that the principles of equal and fair treatment would be undermined if persons who previously worked full time on procurement-related issues, and who therefore (in the Commission's view) have acquired all the "necessary qualifications and skills" to carry out the tasks of Chief Procurement Officer, are treated the same as persons who have not worked full-time on procurement-related issues. The Commission presumes that, in all cases relating to grading for posts, even those involving high level posts[8], a person who works only on a specific task for his/her entire working career will have more effective "qualifications and skills" than a person who has carried out these specific tasks and other related tasks during his/her working career. While that presumption can hold true for low level technical positions, it certainly does not hold true for high-level posts. The Ombudsman maintains his view that "relevant professional experience" means any experience that contributes to the ability of the person to carry out the tasks listed in the job description. For such high-level posts, diversity of experience might, in an overall assessment of a person's ability, actually be advantageous. The Ombudsman also points out that the Commission itself has, for its own internal human resource management purposes, introduced a system of mobility for high-level posts. This system of mobility implicitly recognises that high level managers benefit from a diversity of experience. In sum, such diversity of experience can ensure that a person has even better "necessary qualifications and skills" to carry out high-level tasks.

56. It would of course be incorrect to assume that any additional professional experience would constitute "relevant professional experience". It would be necessary to assess whether such experience contributes to the overall capacity of the person to carry out the tasks required of him/her. However, the Commission has regrettably refused even to attempt to carry out such an assessment.

57. The Ombudsman notes that the position in question relates to a very high-level post, and that the applicant had a significant amount of professional experience (almost 30 years). The Ombudsman considers that the Commission has not shown how a person who limits himself/herself to working on procurement issues for such a significant period of time would have more "relevant professional experience" than a person with a more diverse professional experience.

58. In light of the above, the Ombudsman continues to take the view that the Commission's understanding of "relevant professional experience" is, in the present case, formalistic and bureaucratic. It is also devoid of a factual basis. Moreover, because it cannot be justified by a convincing argument based on the actual capacity of the person to carry out the tasks of Chief Procurement Officer, it breaches the principles of fairness and equal treatment. The Ombudsman can only conclude that the Commission insists on applying such a structure of analysis simply because it is easy to apply, rather than because it is fit for purpose.

59. The Ombudsman further notes that the Commission has again failed to explain how it arrived at the conclusion that specifically one third of the complainant's experience during periods (8), (9), (11) and (12) was relevant. He maintains that the Commission's decision to consider one third of the complainant's experience as relevant for the post, rather than any other proportion, is purely arbitrary. The Ombudsman underlines that he does not question that it is possible to conclude that a certain percentage of a candidate's experience is relevant to a particular post. However, when doing so, the Commission should base itself on an objective assessment of the relevance of the person's experience in terms of his or her ability to carry out the tasks of the post in question. In addition, the Commission's assessment should be properly reasoned. The Ombudsman would like to point out that, even though the Commission asked the complainant to show how much time he spent dealing with public procurement in his various posts, it did not specify – in its reply to the friendly solution proposal – the exact proportion of public procurement responsibilities the complainant had carried out during period (11), when he worked for the Commission. The Commission did not make any comment as regards its own ability to provide the complainant with a certificate to this effect. The Ombudsman can only conclude that the Commission did not provide such information to the complainant because it cannot supply such information. The same would reasonably hold true for any of his previous employers. Therefore, the Ombudsman repeats that the Commission asked the complainant to provide information which he could not reasonably be expected to provide. If the Commission were of the view that such information were not essential to its assessment, and that it could rely on other elements to assess the relevance of a person's experience (which it appears to be arguing now), it should have so informed the complainant. However, this is not what transpired in practice. The Commission had already obtained from the complainant descriptions of his work. It did not consider these descriptions to be sufficiently clear. It then asked for additional supporting documents, namely, the above mentioned certificates.

60. In light of the above, the Ombudsman concludes that the Commission committed an instance of maladministration by adopting an overly formalistic view of what constitutes "relevant professional experience", and by requiring the complainant to provide the exact proportion of his overall responsibilities which were dedicated to public procurement during periods (8), (9), (11) and (12).

61. If a proposal for a friendly solution is rejected, the Ombudsman can address a draft recommendation to the institution concerned. However, he considers that, in this case, no useful purpose would be served by simply restating his friendly solution in the form of a draft recommendation. Instead he will make a critical remark, thus giving the Commission the opportunity to reconsider its future practice on this issue within the framework of its follow-up to the Ombudsman's critical remarks[9]. He will invite the Commission to inform him of its follow-up to its critical remark within six months.

B. Conclusions

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

The Commission committed an instance of maladministration by adopting an overly formalistic view of what constitutes "relevant professional experience" and by requiring the complainant to provide the exact proportion of his overall responsibilities which were dedicated to public procurement during periods (8), (9), (11) and (12).

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

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 September 2011

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[1] Council Joint Action 2008/736/CFSP of 15 September 2008 on the European Union Monitoring Mission in Georgia, OJ 2008 L 248, p. 26.

[2] The matrix for establishing grades was as follows:

Grade 28 >24 years of relevant professional experience;

Grade 27 >20 years of relevant professional experience;

Grade 26 >16 years of relevant professional experience;

Grade 25 >12 years of relevant professional experience;

Grade 24 >8 years of relevant professional experience;

Grade 23 >4 years of relevant professional experience;

Grade 22 = 4 years of relevant professional experience.

[3] C(2007)1746 of 21 December 2007.

[4] See Case T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paragraph 70; Case T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, paragraph 38; Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 102.

[5] The Ombudsman noted that the e-mail in question cannot be attributed to the Commission as the Head of the Administration and Finance Unit in MISSION EUMM Georgia was not a Commission official.

[6] Indeed, the Ombudsman noted, the statement that a "more substantial" review was not possible is a tacit admission on the part of the Commission that its final decision was not based on the necessary facts, and was thus arbitrary.

[7] The certificate provided by the complainant for this period originates from his predecessor.

[8] The situation would certainly be different for low level posts, where specific full time experience carrying out technical tasks is necessary to obtain the requisite level of technical competence.

[9] As of 2006, the Ombudsman decided to conduct an annual study on the follow-up given by the institutions and bodies to critical and further remarks he has addressed to them. This follows a resolution passed by the European Parliament, with an eye to monitoring the level of compliance of the different institutions with the Ombudsman's recommendations. The Ombudsman's annual studies on this topic are available on his website.