THE BACKGROUND TO THE COMPLAINT

1. The complainant, a German citizen, participated in Open Competition EPSO/AD/26/05 for administrators in the field of law. On 7 December 2006, the European Personnel Selection Office (EPSO) informed her that she was admitted to the final stage of the competition, that is, the oral examinations, which would be held from 23 January 2007 onwards. On the same day, the complainant informed EPSO that she was pregnant and due to give birth on 11 March 2007. Therefore, she asked for her examination to be scheduled on the earliest possible date and no later than 9 February 2007. In its reply of 14 December 2006, EPSO stated that candidates with German as their first language would probably be interviewed either between 1 and 8 March 2007 or between 29 March and 2 May 2007, and that it was not possible to hold her interview before 9 February 2007.

2. On 20 December 2006, the complainant received an invitation to sit her oral examination on 16 April 2007. On 23 December 2006, she wrote to EPSO, asking it to reschedule her interview to a date before 9 February 2007 or, "hilfsweise", after 30 April 2007 if this was impossible. On 18 January 2007, she sent a reminder. On 19 January 2007, EPSO informed her that the only alternative date it could offer her was 3 May 2007 because the interview schedule was very tight. The complainant accepted this offer.

3. On 3 May 2007, eight weeks after giving birth (her child was born on 7 March 2007), the complainant sat her oral examination. On 10 May 2007, she was informed that her name would not be placed on the reserve list for the competition because she had not obtained the required minimum amount of points (25 out of 50) for her oral examination, but only 24 points.

THE SUBJECT MATTER OF THE INQUIRY

4. In her complaint to the Ombudsman, the complainant made the following allegations:

(1) EPSO wrongly rejected her request for her oral examination to be scheduled on a date before 9 February 2007.

In support of this allegation, she brought forward the following arguments.

(a) EPSO was responsible for the difficulties in the scheduling, given that the competition had been delayed.

(b) The fact that she had to accept a date after the birth of her child was discriminatory because she was not able to prepare for the examination properly and, on the day of the examination, had to deal with difficulties no male candidate would have encountered.

(c) EPSO should not have scheduled her examination on a date within the 14 weeks maternity protection period laid down in Article 58 of the Staff Regulations. According to her, this protection period should be applied to candidates in EPSO competitions in the same way as to officials.

(d) EPSO had to convoke all members of the jury and the interpreters just for her, given that her examination on 3 May 2007 had turned out to be the last one of the competition and the only one on that date, so that it would not have caused EPSO any additional organisational efforts to have scheduled her examination before 9 February 2007.

(2) EPSO failed properly to deal with her correspondence in this matter.

In support of this allegation, the complainant argued that:

(a) in its first e-mail of 14 December 2006 and in the invitation she received on 20 December 2006, EPSO failed to take her special situation into account;

(b) EPSO replied belatedly to her letter of 23 December 2006 and only following a reminder; and

(c) when offering her an alternative date, EPSO failed to take into account her arguments for an examination date before the birth date of her child.

The complainant claimed that:

1. EPSO should acknowledge its incorrect handling of her special situation and apologise to her for the disadvantages she had to put up with;
2. EPSO should cover the travel costs for her, her baby and a babysitter;
3. EPSO should adopt an official policy regarding candidates who are pregnant or who have just given birth;
4. EPSO should adopt internal rules laying down a period in which candidates' requests have to be answered. Furthermore, these rules should indicate a contact person, to whom candidates can complain if EPSO's reply is delayed;
5. If EPSO rejects a request, it should not only send standard replies, but take a position on the candidate's arguments; and
6. EPSO's correspondence should not only be signed "Your EPSO team", but should state the name of the official who prepared the reply and his or her telephone number.

THE INQUIRY

5. As regards the complainant's second claim, the Ombudsman noted that EPSO had not yet had sufficient time to determine its position. Therefore, this claim was inadmissible according to Article 2(4) of the Statute of the European Ombudsman.

6. The complainant's claims (4) to (6) concerned EPSO's handling of candidates' requests in general. Given that the complainant did not appear to have raised these issues in her prior contacts with EPSO, the Ombudsman considered that her fourth claim was inadmissible according to Article 2(4) of his Statute as well. However, her fifth and sixth claims appeared to be closely related to the complainant's own specific experiences. The Ombudsman, therefore, considered that she should not be required to make additional prior administrative approaches to EPSO in these respects.

7. The Ombudsman thus asked EPSO to submit an opinion on the complainant's allegations and her claims (1), (3), (5) and (6).

8. In her observations on EPSO's opinion, the complainant came back to her second claim, relating to the reimbursement of travel expenses. Given that EPSO had, in the meantime, reimbursed the complainant's travel expenses but refused to do so for the travel expenses of the accompanying person, the Ombudsman included the following allegation and the following claim in his inquiry:

(3) EPSO wrongly refused to reimburse the travel expenses of an accompanying person who attended to the complainant's baby during her oral examination.

In support of this allegation, the complainant argued that (a) the presence of the accompanying person was indispensable and (b) her situation was comparable to the situation of a handicapped candidate who needed an accompanying person in order to be able to take part in the examination. The complainant claimed that the travel expenses for the accompanying person, amounting to EUR 78, should be reimbursed.

9. In the context of his further inquiries into the complainant's additional allegation and claim, the Ombudsman also asked EPSO for further information in relation to four factual issues which, in his view, required clarification.

10. EPSO's reply to this request was forwarded to the complainant, who made observations on it.

11. On 16 October 2008, with the prior agreement of the complainant, the Ombudsman made a proposal for a friendly solution. EPSO replied to this proposal on 3 December 2008. EPSO's reply was forwarded to the complainant for her observations, which she submitted on 9 February 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

12. The following paragraphs will first set out the Ombudsman's analysis of the complaint leading to a friendly solution proposal (A). This analysis will commence with the complainant's allegations that EPSO wrongly refused her request to have the examination scheduled before the birth of her child and that it failed to handle her correspondence properly. It will then look at the resulting claim for an acknowledgement and an apology. The claims relating to the reimbursement of travel costs and for the development of an official policy regarding candidates who are pregnant, or who have just given birth, will be dealt with separately.

13. The Ombudsman will then set out the friendly solution proposal (B), as well as EPSO's opinion and the complainant's observations on that proposal (C). Subsequently, the Ombudsman will present his assessment of developments concerning this case which occurred after the friendly solution proposal (D), and will then finally arrive at his conclusions (E).

A. The Ombudsman's analysis leading to the friendly solution proposal

(1) Incorrect refusal to hold an examination before the birth of a candidate's child

14. First, the complainant argued that EPSO was responsible for the difficulties in the scheduling of her interview because the competition had been delayed. She informed the Ombudsman that she had planned her pregnancy in a way which, she expected, would allow her to sit the oral examination before her baby was born. In so doing, she had followed the timetable initially foreseen for the competition, which foresaw that the oral examinations were to be held from September 2006 onwards. However, in fact, they were only held from January 2007 onwards.

15. In its opinion, EPSO did not comment on the delay. In reply to the Ombudsman's request for further information, as regards the extent and reasons for the delay, EPSO underlined that the organisation of the competition in question was particularly complex because (i) it had been difficult to find examiners for the very specialised questions asked in the written examinations in the 11 languages foreseen in the Notice of Competition and (ii) the admissibility of a large number of applications (544 in total) had to be checked. EPSO submitted that the length of the competition was the logical consequence of this complexity. It added that the complainant's argument that the substantial delay had not been justified was unfounded. In reply to the Ombudsman's question whether EPSO had taken any measures to compensate for eventual adverse consequences of the delay, EPSO stated that it failed to see how the length of the procedure could have led to any disadvantage for the candidates. Therefore, there had been no need for any compensatory measures.

16. In her observations, the complainant maintained that, had it not been for the delay, she could have taken the oral examination without any problems and without the hormonal consequences of having recently given birth. Therefore, the delay had clearly created a disadvantage for her.

17. The Ombudsman noted that, in the relevant Notice of Competition[1], EPSO provided the following "approximate timetable": "The competition will take approximately nine months starting from the date of confirmation of inscription, depending on the number of candidates. Full details will be available on the EPSO website." Given that the closing date for inscriptions was 29 September 2005 and that the complainant was informed about the result of her oral examination on 10 May 2007, there can be no doubt that the competition was substantially delayed.

18. In addition, the reasons EPSO invoked for the length of the procedure were not based on exceptional or unexpected circumstances, but on two facts which EPSO had to be aware of before the start of the procedure. Both the number of languages in which the written examinations could be taken, and the number of applications whose admissibility had to be examined, were laid down in the Notice of Competition. Therefore, if the delay were only due to the two reasons invoked by EPSO, it could have announced a different, approximate timetable in the first place.

19. The Ombudsman acknowledged that the timetable contained in the Notice of Competition was only indicative and that, in open competitions involving as many candidates and as many languages as the one in question, it is difficult to avoid delays. However, contrary to EPSO's point of view, it is evident that the unexpected length of the procedure may have had adverse consequences for participants. Any participant who had made plans similar to those made by the complainant, which were based on the approximate timetable announced by EPSO, could have encountered difficulties, if the timetable were exceeded.

20. Therefore, the Ombudsman considered that, in the event of a substantial delay like the one at issue here, EPSO should pay special attention to possible problems arising from the delay, which candidates bring to its attention. It is against this background that the Ombudsman examined EPSO's handling of the complainant's problem.

21. Second, the complainant argued that the fact she had to accept an interview date that was subsequent to the birth of her child was discriminatory because she was not able to prepare properly for the examination and, on the day of the examination, she had to deal with difficulties no male candidate would have encountered. In particular, she referred to her lack of sleep after the birth of her child, the stress and organisational problems connected with travelling with a newborn baby and a phenomenon called "Stilldemenz", which, according to some scientists, leads to memory loss and inability to concentrate and could be caused by lack of sleep.

22. In its opinion, EPSO recalled that discrimination arose where a person was treated less favourably than another person although they were in a comparable situation. It took the view that the complainant had been treated in exactly the same way as all other candidates because she, like any other candidate, was given the possibility to change the date of her oral examination if it proved impossible for her to take the test on the scheduled date. EPSO had informed her that it was not possible to schedule her examination on a date prior to 9 February 2007.

23. For their oral examinations, candidates were grouped by languages in order to guarantee that interpretation into their respective languages would be available. Requests for interpretation had to be made several weeks in advance, before the candidates were invited. In the period before 9 February 2007, French-, English-, Danish- and Swedish-speaking candidates were interviewed. Given that eight candidates could be interviewed per day, it was absolutely impossible to insert an additional interview into the schedule, which would, moreover, have had to be conducted in a different language. Therefore, following the complainant's request of 23 December 2006, EPSO offered her the alternative date of 3 May 2007, in line with her second suggestion. The complainant accepted this alternative date. Therefore, EPSO took the view that it had entirely complied with the principle of non-discrimination, taking into account the organisational constraints imposed on it by a large, multi-lingual competition.

24. In her observations, the complainant emphasised that she did not make two alternative date suggestions. She only referred to the period after 30 April 2007 in order to highlight a point in time before which it would have been absolutely unthinkable for her to take an examination. This was to prevent any further inappropriate date suggestions by EPSO, which should have been clear to it in view of her use of the word "hilfsweise". She had already made her situation very clear to EPSO in her first communication, which she sent before the interview dates reached her. However, EPSO did not refer to any concrete reasons as to why it could not meet her request. As regards EPSO's argument that she had accepted its second proposal, the complainant argued that she did not have any choice at that stage other than to accept it.

25. In reply to a request by the Ombudsman for more detailed information, EPSO informed him that, taking into account the interpretation requirements of other competitions conducted at the same time, requests for interpretation had to be made at least six weeks before the start of the interviews. In the case at hand, EPSO had formally requested interpretation on 14 December 2006, after concluding the planning of the interviews by language.

26. In reply to the Ombudsman's question as to why it was not possible to hold interviews in more than one language per day before 9 February 2007, EPSO stated that, in order to rationalise the use of interpretation services, it grouped candidates by language. It was common practice to start with those candidates who did not require any interpretation, in this case English- and French-speaking candidates. The only option EPSO had was to invite the complainant to an interview on 3 May 2007, that is, the day following the last regular oral examinations. Five other candidates, who were not able to attend their examination on the planned date, were also interviewed on that day.

27. In reply to the Ombudsman's question as to why, in view of the special circumstances of the complainant's case, EPSO could not make an exception from the rule that eight candidates per day were interviewed, EPSO stated that this would have been impossible, due to the convention on interpreters' working hours. According to this convention, interpreters can work for four hours during the morning and for another four hours in the afternoon, with a compulsory break of one and a half hours. The schedule for the oral examinations in question foresaw that the first candidate would be invited at 9 a.m. and the last one at 5.30 p.m. In general, the Selection Board finished its interviews at approximately 6.30 p.m.

28. In her observations, the complainant recalled that she had informed EPSO of her situation on 7 December 2006, which would have allowed it to examine, before making its request for interpretation on 14 December 2006, the possibility of interviewing her either as the first candidate in the morning, or as the last candidate in the evening on a date before 9 February 2007.

29. The Ombudsman considered that the question whether the complainant was treated differently from other candidates depended not on the possibility of changing her interview date, on which EPSO based its reasoning, but rather on the date EPSO finally offered her. As regards this date, it was obvious that the complainant encountered difficulties which other candidates would not have had, namely, the organisational and psychological consequences of having to prepare for an examination shortly after the birth of her child and travel with an infant. Therefore, it was clear that the complainant was treated differently from other candidates.

30. According to the established case-law of the European Court of Justice, a difference in treatment is discriminatory, if it is not justified by objective factors[2]. In the complainant's case, the difference in treatment would have been avoided, if her interview had been scheduled, in accordance with her wishes, on a date before 9 February 2007. Therefore, the Ombudsman had to examine whether it was possible for EPSO to schedule the complainant's examination on such a date.

31. In this context, it needs to be taken into account that the organisation of oral examinations allows for a much higher degree of flexibility than the organisation of written examinations. Written examinations have to take place at the same time for all candidates, which implies that it will rarely be possible to comply with individual requests for changes in the schedule. Oral examinations, however, generally take place over a longer period of time, which may comprise, like in the present case, several months. Therefore, as EPSO itself pointed out, certain changes in the schedule are possible in order to try and meet candidates' well-founded requests.

32. The Ombudsman was not convinced of EPSO's position that it was impossible for it to organise the complainant's interview on a date prior to 9 February 2007. First of all, the complainant informed EPSO of her situation on 7 December 2006, a week before EPSO submitted its request for interpretation. Her argument that EPSO could, therefore, have adapted its planning does not appear to be without merit. Furthermore, even if it were accepted that EPSO's internal planning of the oral examinations was so far advanced at that stage that it could not have been changed before the requests for interpretation were made, the Ombudsman doubted whether it would not have been possible to insert the complainant's interview into a block of interviews held in a different language. Given that EPSO was able to organise interpretation for the complainant's interview on 3 May 2007, which was held outside of the block of interviews in German, the Ombudsman was not convinced that it would have been impossible to organise such interpretation for a date preceding 9 February 2007. As to the possibility of making an exception from the rule of interviewing eight candidates per day, the Ombudsman was also not convinced of EPSO's position. In particular, the restricted working hours of interpreters would not have affected this possibility, given that it appears that no interpretation was used for the interviews held in English and French and that the complainant's interview would have required the presence of a different interpreter from the ones present for the Danish and Swedish interviews.

33. As regards the fact that the complainant herself, in her letter of 23 December 2006, drew EPSO's attention to 30 April 2007 being "the earliest possible date" for an interview after the birth of her child, the Ombudsman considered that it had to be clear to EPSO that the complainant did not refer to this date as an equally valid alternative to an interview before 9 February 2007. In her letter of 23 December 2006, she described the "almost insurmountable difficulties" which, in her view, argued against the later date. She also used the word "hilfsweise", which, in the Ombudsman's view, made it clear that she only suggested the later date in the event of an absolute impossibility of holding the interview before the birth of her child.

34. Moreover, as the complainant pointed out, her acceptance of the later date could not be held against her because she did not have any other choice, at that stage, but to accept it.

35. In view of the above, the Ombudsman considered that EPSO had not established that it was impossible for it to schedule the complainant's examination on a date before 9 February 2007. Therefore, EPSO's refusal to schedule the examination on such a date could have been discriminatory and could thus have constituted an instance of maladministration.

36. Third, the complainant submitted that EPSO should not have scheduled her examination on a date within the 14-week maternity protection period laid down in Article 58 of the Staff Regulations. According to her, this protection period should be applied to candidates in EPSO competitions in the same way as to officials.

37. In its opinion, EPSO emphasised that the provision to which the complainant referred applied to officials and other servants of the Communities. However, the relevant rules for competitions did not foresee that candidates - no matter if they were officials/other servants or not - could not be invited to take part in an examination during their maternity leave. Moreover, as far as maternity leave was concerned, the situation of a person exercising a professional activity was not comparable to the situation of a candidate in a competition.

38. In her observations, the complainant took the view that, if no equivalent provision in the rules for competitions existed, this showed that there was a gap in these rules. In such cases, it was normal juridical practice to consider the application of provisions regulating a similar situation by analogy. Her situation as the mother of a newborn child was similar to that of an official who had just given birth because the factual circumstances of having to care for the baby were the same. She took the view that it was even appropriate to apply an a fortiori logic. If an official had to be released from work in order to be able to take care of her baby, this protection had to be applied a fortiori in the case of a candidate in a competition who wished to obtain the legal status of an official.

39. The Ombudsman sympathised with the complainant's view that there should be a rule to protect candidates in her situation. In his view, women in this situation clearly needed protection. However, he also considered that it was not necessary for him to examine whether the complainant's argument that Article 58 of the Staff Regulations can and should be applied by analogy was well-founded. This was because he had already established a possible instance of maladministration as regards the alleged discrimination mentioned above.

40. Therefore, the Ombudsman considered that he did not need to pursue this argument advanced by the complainant any further.

41. Fourth, the complainant argued that EPSO had to convoke all members of the selection board and the interpreters just for her, given that her examination on 3 May 2007 had turned out to be the last one of the competition, and the only one on that date, so it would not have caused EPSO any more organisational efforts to schedule her examination before 9 February 2007.

42. In its opinion, EPSO reiterated that the oral examinations had to be planned several weeks in advance, mainly due to the reservation of interpretation services, and that it had not been possible to schedule the complainant's interview on a date before 9 February 2007. EPSO highlighted that, on 3 May 2007, the selection board had not only interviewed the complainant, but also five other candidates who had not been able to attend their interview on the scheduled date.

43. In her observations, the complainant acknowledged that scheduling her interview before 9 February 2007 may have required additional organisational and financial efforts. However, in her view, this had to be accepted in order to avoid discriminating against her.

44. It appeared from the complainant's observations that she did not maintain the reasoning underlying her fourth argument. Therefore, and in view of the Ombudsman's findings as regards the complainant's second argument, he considered that he did not need to pursue this argument any further.

(2) Allegation of failure to handle correspondence properly and related claims

45. In support of her allegation that EPSO failed properly to deal with her correspondence, the complainant argued that EPSO (i) failed to take into account her special situation in its first e-mail of 14 December 2006 and in the invitation she received on 20 December 2006; (ii) replied belatedly to her letter of 23 December 2006 and only following a reminder; and (iii) failed, when offering her an alternative date, to take into account her arguments for an examination date before the birth date of her child. In this context, the complainant claimed that, if EPSO rejects a request, it should not only send standard replies, but take a position on the candidate's arguments. Moreover, she found it ironic that EPSO had ended its message rejecting her request with the words, "Thank you for your understanding". The complainant also claimed that EPSO's correspondence should not only be signed "Your EPSO team", but should state the name of the official who prepared the reply and his or her telephone number.

46. In its opinion, EPSO assured the complainant that it had been aware of her situation. It was because of this that it had tried to find a date for her oral examination, which was as convenient for her as possible. In its reply of 14 December 2006, EPSO informed the complainant that it was not possible to hold her interview before 9 February 2007. It also informed her of the periods during which the interviews with German-speaking candidates would be held. As regards the complainant's letter of 23 December 2006, in view of the closure of its offices during the Christmas vacation period, this letter was only registered on 3 January 2007. According to the Code of Good Administrative Behaviour, it had 15 working days to reply to the afore-mentioned letter, starting from the date of registration. By replying on 19 January 2007, EPSO fully respected its obligation in this regard. EPSO added that, in her letter of 23 December 2006, the complainant requested that her interview date be changed to either before 9 February 2007, which EPSO had already stated was not possible, or after 30 April 2007. Therefore, its suggestion to hold the interview on 3 May 2007 showed that it had taken her request into account.

47. As regards the use of standard letters, EPSO acknowledged that the invitations to the oral examinations had a standard character. However, this was not the case for letters exchanged with candidates who had introduced a specific request. In the complainant's case, EPSO's services took note of the reasons leading the complainant to request a change in her interview date and informed her of the possibilities for making such a change. Contrary to the complainant's view that EPSO did not take a position on her arguments, it was precisely on the basis of her arguments that her interview date was changed.

48. As regards the signature "Your EPSO team", EPSO explained that candidates in open competitions had the possibility to communicate with it through a special mailbox. The existence of one mailbox per competition ensured that all electronic mail was dealt with by the team in charge of the competition.

49. In her observations, the complainant maintained that EPSO had replied to her in a few short sentences, and without taking a position on her arguments. Moreover, it was abundantly clear that EPSO had not been aware of her situation because its first offer for an interview date was for 16 April 2007, only five weeks after her baby's anticipated birth date. Depending on the actual date of birth, this date could have been as little as three weeks after the birth. Even after her letter of 23 December 2006, EPSO did not take a position on her arguments and replied to her in a single short sentence. In this context, the complainant emphasised that not only the content, but also the way in which EPSO replied to requests such as hers was essential. If it had been absolutely impossible for EPSO to meet her request, she would have felt that she was being taken more seriously if EPSO had explained the organisational problems as regards her specific case, instead of referring to facts which were commonplace such as the tight competition schedule. Had EPSO done so, she might not have needed to complain to the Ombudsman at all. As regards EPSO's reply to her letter of 23 December 2006, the complainant added that, even if it was sent within the timeframe foreseen by the Code of Good Administrative Behaviour, a more rapid reply would have been appropriate in such an urgent case, given that her request related to a date in the very near future.

50. In his letter requesting further information from EPSO, the Ombudsman pointed out that he did not yet fully understand how creating a special mailbox to handle correspondence for a given competition could prevent EPSO staff from indicating their names and telephone numbers in their replies to candidates. He recalled that principles of good administration laid down in the European Code of Good Administrative Behaviour require that officials shall be accessible in relations with the public (Article 12) and that, when dealing with correspondence from citizens, the institutions shall indicate the name and telephone number of the official who is dealing with the matter (Articles 14 and 15). He asked EPSO to explain its position concerning this issue.

51. In its reply, EPSO stated that the Commission's Code of Good Administrative Behaviour, which it applied, provided that electronic mail was to be dealt with following the guidelines described in the section on telephone communication. This section provided that "staff shall identify themselves or their department" when answering the telephone. EPSO's reply from the mailbox to which the complainant had written had effectively identified the service in charge of the reply, as foreseen by the Code. This did not reduce the candidate's possibility of contacting EPSO's services again. On the contrary, the establishment of a team guaranteed that the possible absence of one of its members did not prevent a timely reply to such a correspondence. Nevertheless, EPSO added that it was entirely aware of the importance of providing a good service to candidates. In this sense, mentioning the name of the person in charge of the matter, in the reply sent to candidates, corresponded to good practice. Therefore, and in the framework of the establishment of the future "EPSO Contact Centre", the goal of which would be to further improve the quality of the service provided by EPSO, it intended, "in the medium term", to change its procedures in order to systematically indicate the name of the person in charge. However, the candidates would still have to send their correspondence to special mailboxes connected with the "Contact Centre", in order to optimise the treatment of correspondence.

52. With respect to this last-mentioned aspect, the Ombudsman recalled that, as regards e-mail correspondence, the Commission's Code cited by EPSO also provides that, "where the e-mail message is, by its nature, the equivalent of a letter, it shall be handled according to the guidelines for handling correspondence and shall be subject to the same deadlines". These guidelines foresee that "[t]he reply should identify the person responsible for the matter and state how he or she may be contacted". The complainant's e-mail in question, sent on 7 December 2006, was written in the form of a formal letter and showed the complainant's full address and telephone number. Therefore, the Ombudsman considered that, if EPSO applied the Commission's Code, it should have considered the complainant's e-mail as being equivalent to a letter.

53. However, the Ombudsman considered that he did not need to pursue this issue further because EPSO announced that it would change its practice in this respect. He was pleased to note that EPSO acknowledged that the indication of the name of the person who dealt with the candidates' correspondence could enhance the quality of its service and welcomed EPSO's intention to systematically provide this indication. In view of EPSO's repeated reference to the requirement of sending correspondence to a specific mailbox, it appeared useful to add that, in the Ombudsman's view, this requirement did not seem to have any adverse consequences. On the contrary, EPSO's argument that the mailbox system ensures timely replies to candidates, even in the event of staff absences, appeared to be entirely reasonable.

54. However, it was difficult to understand why the change in practice could only take place in the framework of the establishment of what EPSO referred to as the "EPSO Contact Centre", and thus only "in the medium term". As far as the Ombudsman could see, all that was required to implement the change would be a simple instruction to all EPSO staff. In this way, candidates in ongoing EPSO competitions could start benefiting immediately from this clear improvement in administrative standards.

55. As regards the timeliness of EPSO's reply to the complainant's letter of 23 December 2006, it should be noted that, in accordance with the Commission's Code of Good Administrative Behaviour, a reply to a letter "shall be sent within fifteen working days from the date of receipt of the letter". The Ombudsman did not know when the complainant's letter was delivered to EPSO and, thus, from what date the period of 15 days had to be calculated. In any event, he considered that the fact that EPSO's offices were closed for the Christmas vacation period could hardly justify an extension of the time-limit for a reply. Moreover, even if EPSO respected the time-limit laid down in the Commission's Code of Good Administrative Behaviour, this time-limit should not be applied mechanically. The institution should rather take the relative urgency of correspondences into account when establishing its priorities in answering them. In the present case, it was clear that the complainant was urgently waiting for a reply, given that she had requested for her interview to be rescheduled to a date in the very near future. In the event that this request were granted, she would have had only very limited time in order to prepare for the examination.

56. However, given that this procedural issue was closely connected to the substantive aspect of the complaint, concerning which a proposal for a friendly solution would be made, the Ombudsman considered that he did not need to take further action as regards this aspect of the case.

57. As regards the complainant's position that EPSO failed to take her special situation and her arguments into account, the Ombudsman considered it helpful to reproduce the content of EPSO's replies. Its first reply of 14 December 2006 was worded as follows:

"Dear candidate, Thank you for your e-mail. The letter indicating the date of your oral test will be published in principle during the week of 18 December. The only indication we can give you is that the candidates whose first language is German will probably do their oral test either between the 1-8/03/2007 or 29/03-02/05/2007. Unfortunately it will not be possible before 09/02/2007. Thank you for your understanding. Best Regards, Your EPSO team".

Its reply of 19 January 2007 stated:

"Dear Ms ..., Thank you for your letter. After having examined the possibility of changing the date for your interview we can only offer you 3 May, 9 a.m., because our schedule is very tight. Please confirm by e-mail if you can attend the interview on the proposed date. In a few days, you will then find a new invitation letter in your EPSO profile. Kind regards, Your EPSO team"[3].

58. In the Ombudsman's view, these replies did not constitute standard replies, given that they were based on information provided by the complainant, and contained a reaction to her specific request. Therefore, the complainant's claim that EPSO should not send standard replies to candidates in a situation like hers lacked a sufficient factual basis.

59. However, the Ombudsman considered that the content of EPSO's replies to the complainant was very unsatisfactory. In his view, it would have been good administrative practice for EPSO, being aware of the competition's substantial delay and her e-mail of 7 December 2006, to acknowledge the complainant's difficulties and to rapidly consult with her in order to find a date for her interview which was both acceptable for her and feasible in view of the complex organisation of the competition. It should have been clear to EPSO that its rather terse and impersonal reply would not satisfy the complainant and that, in particular, its statement "Thank you for your understanding" was even likely to be perceived as ironic by a person in the complainant's situation. Moreover, even after the complainant had further explained her situation in a detailed letter sent on 23 December 2006, EPSO still did not adopt a more personal approach by referring to the specific reasons as to why it could not meet the complainant's request, but only referred to the competition's rather obvious "tight schedule".

60. Therefore, the Ombudsman concluded that, by not responding to her specific arguments as regards the possibilities for rescheduling her oral examination, EPSO failed to handle the complainant's correspondence properly. This could have constituted a further instance of maladministration.

61. In view of the above, the Ombudsman considered that he did not need to examine the complainant's argument that her invitation to interview on 14 April 2007 clearly demonstrated that EPSO had failed to understand her situation.

(3) The claim for an acknowledgement and an apology

62. The complainant claimed that EPSO should acknowledge its incorrect handling of her special situation and apologise to her for the disadvantages she had to put up with.

63. In its opinion, EPSO stated that it did not share the complainant's feeling that it treated her incorrectly. In fact, EPSO had tried to meet her request as well as it could, taking into account the specific circumstances of her case and the considerable organisational problems connected with the planning of 283 interviews.

64. In her observations, the complainant maintained her view.

65. The Ombudsman found possible instances of maladministration as regards EPSO's refusal to schedule the complainant's examination on a date prior to 9 February 2007 and as regards its handling of the complainant's correspondence.

66. On the basis of these findings, the complainant's claim that EPSO should acknowledge its incorrect handling of her special situation appeared to be well-founded. This was addressed in the proposal for a friendly solution (see below).

67. The complainant's claim for an apology also appeared justified at first sight. However, when making his friendly solution proposal, the Ombudsman considered that he would not need to assess this claim any further, if EPSO were to accept the friendly solution proposal set out below and thereby satisfy the complainant.

(4) Allegation of incorrect refusal to reimburse travel costs and related claim

68. The complainant alleged that EPSO wrongly refused to reimburse the travel expenses of an accompanying person who attended to her baby during her oral examination. In support of this allegation, she argued that (i) the presence of this person was indispensable and that (ii) her situation was comparable to the situation of a handicapped candidate who needed an accompanying person in order to be able to take part in the examination. The complainant claimed that the travel expenses for the accompanying person, amounting to EUR 78, should be reimbursed.

69. In its opinion, EPSO stated that the relevant rules, that is, the "Provisions on assistance towards the travel and subsistence costs of candidates called for the written tests of competitions, tests of competencies or other selection procedures organised by the European Personnel Selection Office (EPSO)", only provided for a contribution to the travel costs of the invited candidates. This was confirmed by a decision of the Heads of Administration of 15 February 2008. For the candidates' information, EPSO had enclosed a copy of the "Provisions" with its invitation to the oral examinations. Moreover, EPSO had informed the complainant by e-mail of 23 January 2007, in reply to her specific request, that the travel costs of an accompanying person could not be reimbursed. EPSO added that, since only participants in the oral examinations could be reimbursed for their travel costs, a person accompanying a handicapped candidate would also not be entitled to a reimbursement.

70. The complainant did not make any observations on this aspect of EPSO's opinion.

71. The Ombudsman noted that the "Provisions", a copy of which EPSO enclosed with its opinion, did indeed not provide for the reimbursement of travel expenses for third persons. Moreover, he recalled that it is the responsibility of the EU institutions and bodies to ensure that Community funds are spent economically.

72. However, as far as the Ombudsman could see, there did not appear to be any rules which prohibit an additional payment in exceptional cases like the complainant's. He recalled that the complainant's difficulties were caused by the delay in the competition and by EPSO's failure to schedule the complainant's examination before 9 February 2007. In these circumstances, and in view of the very small amount claimed by the complainant (EUR 78), the Ombudsman considered that it would constitute good administrative practice, if EPSO reimbursed this amount to her on an ex gratia basis.

(5) The claim for an official policy relating to pregnant and breastfeeding women

73. The complainant also claimed that EPSO should adopt an official policy regarding candidates who are pregnant or who have just given birth.

74. In its opinion, EPSO pointed out that, for tests and written examinations, it had already adopted special measures for pregnant candidates and candidates who had recently given birth. For candidates whose anticipated date to give birth was close to the date of written tests, it provided separate rooms in which they could take the tests, in order to ensure their safety in the event of, for example, a premature birth or evacuation of the premises. It also provided an additional room in order to allow candidates who had recently given birth to breastfeed their babies. Therefore, EPSO took the view that it was already taking appropriate and reasonable measures, thereby respecting the principles of proportionality and good administration.

75. In her observations, the complainant stated that she found it interesting to learn that such special measures were already being taken. However, she wondered where these measures were laid down and why she was not informed of them when she announced her pregnancy to EPSO. A separate room for breastfeeding would have been of particular interest to her. However, she presumed that EPSO took these measures on an ad hoc basis. If this meant that the candidates concerned were not informed of the measures that could be taken, she wished to confirm her claim that EPSO should adopt an official policy, which should be made accessible to all candidates.

76. In reply to the Ombudsman's request for further information concerning the scope of the measures in question and their application, EPSO stated that, following express requests by candidates, special measures could be adopted to a reasonable degree at every stage of the competition (computer tests, written examinations, oral examinations). EPSO also recalled that it would agree to change the date of oral examinations within the bounds of the possible. It stated that the measures were taken according to the needs perceived by the candidates themselves.

77. In reply to the Ombudsman's question as to how it informed candidates of these measures, EPSO stated that the Notice of Competition provided that candidates suffering from a handicap had to inform it of the measures they considered necessary in order to facilitate their participation in the examinations. Moreover, on the application forms, candidates could indicate a handicap which required special measures by ticking a box. EPSO's policy as regards handicapped candidates was applied by analogy to all candidates who considered that special measures needed to be taken in order to allow them to participate in the competition. It was left to the candidates' discretion, if they considered it appropriate or necessary to ask for such measures.

78. In her observations, the complainant stated that she had not felt "handicapped" by her pregnancy and therefore did not tick the box on the application form.

79. The principle of equal treatment requires that pregnant candidates and candidates who have recently given birth be enabled to participate in EPSO open competitions under conditions which are as close as possible to the conditions for other candidates. The Ombudsman was pleased to note that EPSO was already taking certain special measures in order to serve this end. The specific measures EPSO referred to appeared to be reasonable and appropriate.

80. However, these measures could not be fully effective, if the candidates concerned were not made aware of their availability. Therefore, the Ombudsman considered that the measures should not only be discussed following a specific request from a candidate, but that candidates should be informed systematically of their availability. Furthermore, it could not be expected that pregnant candidates understand the part of the application form concerning handicapped candidates as applying to their situation by analogy. It was inappropriate to suggest, even though this was probably done unintentionally, that a pregnancy should be considered as equivalent or similar to a handicap.

81. The Ombudsman thus considered that the complainant's claim for an official policy regarding candidates who are pregnant, or who have just given birth was fully justified.

82. In this context, it was useful to point out that the European Parliament, in reply to a further remark from the Ombudsman concerning a similar complaint involving an internal competition[4], informed the Ombudsman of a number of initiatives it had taken in order to revise the conditions for the participation of breastfeeding women in competitions:

"Firstly, a short paragraph has been inserted in all the notices of competition directly organised by the Parliament to draw the attention of candidates in a particular situation (e.g. pregnant, breastfeeding) to the need to carefully fill in the relevant part of the application form so that Parliament is able to make any arrangements that are considered necessary. Secondly, Parliament has modified the letters of invitation in order to remind the candidates of the importance of informing us of any special circumstances that may exist. Thirdly, the Competitions and Selection Procedures Unit may adapt the dates of the tests in specific cases. Finally, Parliament has asked EPSO to look at the possibility of adopting the same practice for all EPSO open competitions."

The Ombudsman understood that discussions between Parliament and EPSO concerning this proposal are ongoing.

83. The Ombudsman welcomed Parliament's initiative to approach EPSO with this proposal which, in his view, constituted a good example of sharing best practice among the EU institutions and bodies. Therefore, he supported Parliament's approach and trusted that EPSO would give careful consideration to the proposal, which could also serve as a basis for its reply to his proposal for a friendly solution in this case.

B. The proposal for a friendly solution

84. On the basis of his analysis set out above, the Ombudsman proposed that EPSO could consider:

1. acknowledging that it failed to handle the complainant's special situation properly;
2. reimbursing, on an ex gratia basis, the travel expenses of the person who accompanied the complainant to her oral examination (EUR 78); and
3. adopting an official policy concerning the conditions for the participation of pregnant and breastfeeding women in EPSO open competitions. This policy should reflect the principle of equal treatment.

C. The arguments presented to the Ombudsman after his friendly solution proposal

Acknowledgment that EPSO failed to handle the complainant's situation properly

85. After careful consideration, EPSO maintained that it had taken all appropriate and reasonable measures in order to accommodate as far as possible the complainant's wishes. It recalled that organising oral examinations was a complex matter and that it had to take account of the availability of translators. However, it assured the Ombudsman that it usually tried to accommodate as far as possible the wishes and needs of candidates with special requirements.

86. The complainant expressed her disappointment at EPSO's position. In her view, the contrary was true, as could be seen from the frequent and drawn-out exchange of letters regarding this matter.

Reimbursement of travel costs for an accompanying person

87. EPSO recalled that the "Provisions", according to which the travel costs for candidates were reimbursed, did not foresee the reimbursement of travel costs for persons accompanying the candidates to the oral examinations and that the complainant, as well as all other candidates, were informed of this. However, it stated that it was conscious of the importance of facilitating access to the examinations for candidates in need of support. It, therefore, declared its intention to review the currently applicable rules on the reimbursement of travel costs, since these currently did not allow for such exceptions. On this basis, EPSO accepted this part of the Ombudsman's friendly solution proposal and reimbursed the complainant the sum of EUR 78.

88. In her observations, the complainant confirmed that the money had been transferred to her account and expressed her gratitude in relation to EPSO's decision in this regard.

Official policy regarding pregnant and breastfeeding women

89. In its opinion on the friendly solution proposal, EPSO stated that it continued to assign great importance to the principle of equal treatment and, therefore, made special arrangements for candidates which require them. EPSO also took into account information provided to it by the European Parliament, as referred to by the Ombudsman in his friendly solution proposal. On this basis, it agreed to make more information available to candidates in future notices of competition.

90. Under the new electronic application system, operational since March 2009, candidates are given the possibility to tick a box, if there are any special circumstances which may lead to difficulties during the examination. Candidates are also asked to provide information on what action they think needs to be taken in order to facilitate their participation in the exams.

91. The complainant did not comment on this aspect of EPSO's opinion.

D. The Ombudsman's assessment after his friendly solution proposal

92. It appears from the above that the Ombudsman's friendly solution proposal has not been accepted in its entirety. A friendly solution proposal can only be considered successful where all proposals have been accepted by both the complainant and the institution. It, therefore, falls to the Ombudsman to assess whether any further steps need to be taken in relation to the issues addressed in the complaint. In order to do so, the Ombudsman will look at each of the elements of this proposal for a friendly solution below.

Reimbursement of travel costs for an accompanying person

93. The Ombudsman is pleased to note that EPSO has reimbursed the travel costs for the person accompanying the complainant to her oral examination in order to attend to her baby, as he suggested in his proposal for a friendly solution. He further notes that EPSO has decided to review the rules which, by not providing for exceptions in particular situations, gave rise to problems encountered in this instance. The Ombudsman appreciates the fact that EPSO is actively seeking to improve matters for the future.

94. Accordingly, the Ombudsman concludes that there are no grounds for further inquiries regarding the above claim and allegation.

Official policy regarding pregnant and breastfeeding women

95. The Ombudsman welcomes EPSO's decision to inform all candidates about the possibility of applying for special measures in future notices of competition. He is also pleased to note that, in its response to his friendly solution proposal, EPSO has taken account of Parliament's initiative.

96. It may be questioned whether informing candidates that special measures may be taken upon application does in fact constitute an official policy, in the sense claimed by the complainant and as suggested in the friendly solution proposal. Thus, in the absence of an official document which sets out these measures, not all candidates may be clear of their extent. However, the Ombudsman considers that the solution adopted by EPSO can nevertheless be considered satisfactory. He, therefore, sees no reason to conduct further inquiries into this aspect of the case.

Acknowledgement that EPSO has failed to handle the complainant's situation properly

97. The Ombudsman regrets that EPSO did not feel able to acknowledge that it failed to handle the complainant's special situation properly. In his view, such an acknowledgement was clearly due. The Ombudsman further considers that it would have been in line with the principle of good administration, if EPSO had also presented an apology to the complainant. He, therefore, finds that the maladministration he identified in this context has not been eliminated. However, regard should be had to the fact that (i) EPSO has been cooperative in relation to the two other aspects that were raised in the proposal for a friendly solution and (ii) the complainant has not insisted on an apology. The Ombudsman, therefore, considers that it would not be appropriate to pursue this issue by making a draft recommendation. Instead, he will make a corresponding critical remark below.

E. Conclusions

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

EPSO wrongly refused to schedule the complainant's examination, on a date prior to 9 February 2007, and failed properly to deal with her correspondence by not responding adequately to her specific arguments regarding the rescheduling of her oral examination. This constitutes an instance of maladministration.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 6 October 2009

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[1] OJ 2005 C 178 A, p. 3.

[2] Case 171/88 Rinner-Kühn [1989] ECR 2743.

[3] Translation from the German original by the Ombudsman's services.

[4] Complaint 3278/2004/ELB. The Ombudsman's decision in this case is available on his website: www.ombudsman.europa.eu/decision/en/043278.htm.