THE BACKGROUND TO THE COMPLAINT

1. In 2005, the complainant succeeded in a competition which EPSO organised for the Commission (the Europe Aid Co-operation Office) in the field of civil engineering (ref.:M). He was placed on the competition's reserve list ('the List'). The validity of the List was extended several times, and is due to expire at the end of 2010.

2. On 15 September 2008, EPSO sent the complainant a letter informing him of his place on the List. EPSO highlighted that, since February 2007, his candidacy had been available for consideration by any institution with access to a "quota" in the List.

3. The notice of competition for the said competition contained the following clause in the application section, which had to be signed by all candidates: "…By signing the application form you [the applicant] undertake to accept service in a Commission Delegation if you are recruited". The complainant was aware of this clause but, in light of EPSO's letter dated 15 September 2008, he did not consider that this clause precluded him from being considered for positions other that those offered in the Delegations of the Europe Aid Co-operation Office (DG AIDCO). He therefore applied for a number of vacant posts in various Commission services, one of which was DGX. His application was turned down. He considered that this was the result of DG Administration and Personnel (DG ADMIN) informing DG X that the only vacant posts for which he could be considered were those in Commission Delegations because he had been placed on the List.

4. On 12 February 2009, the complainant wrote to DG ADMIN to find out whether the List on which he had been placed precluded him from applying for positions in any service within an EU institution. He pointed out, inter alia, that other candidates on the List had been recruited to serve in the Commission's Headquarters. On 3 March 2009, the complainant sent the Commission a reminder.

5. On 19 March 2009, in the absence of a reply from the Commission, the complainant submitted a complaint to the Ombudsman, which was registered under reference number 707/2009/JMA. The complainant alleged that the Commission failed to reply to his letters dated 12 February and 3 March 2009, and he claimed that the institution should reply to them.

6. In order to obtain a prompt reply to the complainant's letters, the Ombudsman's Secretariat approached the Commission by telephone.

7. On 22 April 2009, the Commission forwarded the Ombudsman a copy of its services' reply to the complainant, which was sent on 21 April 2009.

8. To summarise, the Commission's reply outlined how EPSO had improved its communication procedures with successful candidates by publishing general information on what to expect during the recruitment process, for example, how long it would take, and how reserve lists are shared internally between EU institutions in an inter-institutional context, through so-called "flagging". It explained that EPSO notifies laureates individually of their success in a competition, and whether they are on a reserve list, or assigned to a specific institution. Candidates are also informed of any subsequent changes to their status on the reserve list, or if an institution decides to invite them for interview, recruit them, or to release them back into the pool of available candidates on the reserve list. The Commission noted, however, that, because of the very high number of available laureates, for EPSO to provide an individualised and regularly updated messaging service, disproportionate human resources would be required.

9. The Commission further argued that, even without closer examination of the complainant's EPSO profile, the notice of competition remained the legal framework of the competition for which he had applied. In this context, the Commission recalled that the notice of competition for which the complainant applied contained the following disclaimer: "Important: By signing the application form you [the applicant] undertake to accept service in a Commission Delegation if you are recruited". The Commission explained that while this disclaimer restricts the recruitment of successful candidates to Commission Delegations, the Appointing Authority retains a sufficient margin of discretion. The Commission pointed out that being placed on a reserve list does not mean that a candidate has a right to be recruited. A successful candidate's "pro-activeness" may help him/her to obtain recruitment but, ultimately, the decision depends on the interest of the institution's service. Restricting recruitment to Commission Delegations is a general rule to which derogation can be envisaged if it is in the particular interest of a service to do so. However, considering that the EPSO/A/19/04 reserve list was old, the Commission agreed that, in future, with the prior authorisation of the Directorate General which requests the competition, the general rule of restricting recruitments to Commission Delegations would be lifted if no vacancies existed for the specialists' functions concerned, and there were no suitable laureates from generalists' (or appropriate specific) competitions to fill a vacancy.

10. The Commission added that the competition in question was for a grade A6/A7 post, due to the specific nature of the duties required. For general functions, for example, in the field of human resources, law, economics or auditing, the Commission generally organises competitions for grade AD posts, starting with the base grade of AD5. The Commission therefore considered that it was all the more important that the restriction should be respected in this case.

11. Finally, the Commission addressed the question regarding the priority given to EU-12 recruitments. It explained that, in the context of a large-scale EU-10 and EU-2 enlargement, the Commission's first priority was to recruit a high number of nationals from the new Member States, and to reach the fixed targets within the set transitional periods (before the end of 2010 and 2011, respectively). The Commission noted, however, that despite this priority, since the accession of the EU-2 Member States, it was more appropriate to recruit EU-15 nationals and it stated that, since 1 May 2004, the Commission had recruited more than 2 700 EU-15 officials or temporary agents, and it predicted that EU-15 recruitment would continue. The Commission also stated that in its communication adopted on 19 February 2003 (C(2003)436) it set "indicative targets" (and not quota targets) for each of the EU-10 Member States reflecting their relative weight in the enlarged Union. In addition, in order to ensure that citizens of the EU-10 Member States are recruited in an appropriate and balanced way across its services, the Commission set annual targets for the Directorates General.

12. On 27 April 2009, the Ombudsman closed case 707/2009/JMA because the Commission had responded to the complainant's claim that it should reply to his letters of 12 February and 3 March 2009. In his closing letter, the Ombudsman emphasised that his finding related only to the Commission's failure to reply to the said letters, but that he had not evaluated the substance of the answer the Commission sent to the complainant on 21 April 2009.

13. The complainant was not satisfied with the substance of the Commission's answer of 21 April 2009. He lodged a new complaint with the Ombudsman, registered under reference number 1410/2009/(JMA)MHZ, to which the present decision relates.

THE SUBJECT MATTER OF THE INQUIRY

14. The complainant alleged that the Commission's reply of 21 April 2009 was unsatisfactory for the following reasons:

(i) the Commission did not properly address the substance of his query, namely, whether or not, in his particular case, he would be allowed to be recruited for positions other than those in Commission Delegations in view of the fact that other candidates from the List had been recruited for posts in the Commission Headquarters (Brussels), and not in Commission Delegations;

(ii) several of the Commission's explanations were unclear or contradictory. In particular as regards: (a) the information which EPSO should send to candidates on a reserve list concerning their status; (b) the grade at which the competition was organised.

15. The complainant claimed that he should be allowed to be recruited to positions other than those in Commission Delegations.

16. He also claimed that the Commission should provide clearer explanations about the information which EPSO sends to candidates on reserve lists concerning their status, and the grade at which competitions are organised.

17. Finally, he claimed that the Commission should provide precise figures for the number of EU-15 officials and temporary agents recruited since 1 May 2004.

18. In his observations on the Commission's opinion, the complainant submitted a new allegation, namely, that it was misleading to publish the following clause in the notice of competition: "… By signing the application form you [the applicant] undertake to accept service in a Commission Delegation if you are recruited". He argued that the clause is most likely to be understood as a declaration by the applicant that, if recruited, he or she would not refuse to go to a Commission Delegation. However, according to the Commission, the clause meant something different, namely, that candidates placed on the reserve list would normally be considered for recruitment only in Commission Delegations (and not, for instance, in the office of DG AIDCO in Brussels) unless DG AIDCO were to allow other DGs/ institutions to select candidates from the List. The complainant thus pointed out that such an important clause in the notice of competition should have been much more specific, and instead of the wording "By signing the application form you [the applicant] undertake to accept service in […] if you are recruited", the same wording as that used in the recent competition organised for OLAF by EPSO[1] should have been used: "If you are placed on the reserve list, you will only be eligible for appointment to a post in […]".

19. In this respect, the Ombudsman points out that it is EPSO's Director, as the Appointing Authority, who decides the wording of the notice of competition to be published in the Official Journal. The present complaint is, however, directed against the Commission and not EPSO. The Ombudsman will not, therefore, investigate the allegation and arguments in paragraph 18 in the framework of the present inquiry. He does, however, consider it useful to forward EPSO an anonymised copy of the present decision.

20. For the same reasons stated above, the Ombudsman cannot deal with the complainant’s subsequent new allegation submitted in his observations that EPSO was late in sending him the first communication concerning his status on the List because it did so only one and half years after the List was established.

21. If the complainant wishes the Ombudsman to deal with his grievances against EPSO, he should submit a new complaint after making all the appropriate prior administrative approaches to EPSO.

THE INQUIRY

22. On 9 September 2009, the Ombudsman forwarded the complaint to the Commission with a request for an opinion. On 3 December 2009, the Commission sent its opinion, which was then forwarded to the complainant. On 25 January 2010, the complainant sent his observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged unsatisfactory reply regarding the rule restricting recruitment to Commission Delegations, relevant exceptions and claim

Arguments presented to the Ombudsman

23. The complainant alleged that the Commission's reply of 21 April 2009 was unsatisfactory, since it did not properly address the substance of his query, namely, whether or not, in his particular case, he would be allowed to be recruited to positions other than those in Commission Delegations. He claimed that the Commission should allow such recruitment.

24. In support of his allegation and claim, the complainant added that he had been discriminated against, given that exceptions had been made and other candidates from the List had in fact been recruited for posts in the Commission's headquarters in Brussels.

25. He pointed out that in the course of four years he had not been invited for a single interview, despite the fact that the rotation of officials in Commission Delegations means that vacancies must constantly arise for which officials would wish to apply, unless they were located in extremely unpopular places.

26. In his observations, the complainant also argued that the Commission does not treat all reserve lists in the same way. For example, he referred to the competition restricted to OLAF, EPSO/AD/116/08[2] where the notice of competition clearly stated in paragraph 6 that "If you are placed on the reserve list, you will only be eligible for appointment to a post in the European Anti-Fraud Office". Despite this, four months after the competition, the list was opened to institutions other than OLAF. The complainant's List, however, after five years, remains restricted to Commission Delegations.

27. In its opinion to the Ombudsman, the Commission reiterated with regard to the List that the notice of competition restricted the recruitment of successful candidates to Commission Delegations, but left the Appointing Authority a sufficient margin of discretion. The Commission further stated that when candidates registered for the competition, they accepted the recruitment conditions indicated in the notice for that competition. The only circumstances under which the Commission would consider candidates from the List for positions other than those in Commission Delegations were if: (a) DG AIDCO, which requested the competition, had no vacancies in the field of the competition (civil engineering); (b) the job description for the positions other than those in Commission Delegations corresponded to the field of civil engineering; and (c) there were no better suited successful candidates (from other competitions) to occupy the above positions.

28. It further stated that the complainant had not been discriminated against because the Commission had consistently applied the rule restricting recruitment to Commission Delegations, and exceptions had only been made “in some very specific cases in the interest of the service” and only in compliance with the conditions stipulated in paragraph 27. Thus 85% of successful candidates recruited by the Commission entered into functions in Commission Delegations, that is, they started working for DG AIDCO.

29. As regards the complainant's claim, the Commission noted (i) that, as already mentioned in its letter dated 21 April 2009, the List was relatively old, and (ii) that the general rule of restricting recruitments to Commission Delegations had been lifted. As a result, the complainant has been "flagged" for the Commission following a request for reservation issued by the Directorate General Y (DG Y) and he is to be contacted for an interview "in the coming weeks" and "depending on the outcome of the interview, the process may end with a formal job offer".

30. In his observations, the complainant considered that it is unclear how exceptions are made to the general rule of restricting recruitments, that there is a lack of transparency, and discrimination. He first referred to the Commission's statements regarding the Appointing Authorities' margin of discretion and the fact that they can consider "very specific cases in the interest of the service". Second, he highlighted that condition (c), relating to laureates of generalists' competitions, could be understood as giving preference to candidates who succeed in general competitions over laureates in specific reserve lists, even for positions that require specialist knowledge. Third, he stated that he has "evidence that at least some of the 15 % very specific cases in the interests of the service … are people who were already working inside the Commission with different contracts (Contract agent, Temporary Agent and even already Officials but with lower grade)".

31. The Commission stated in its opinion that the List "had been opened". In his observations, the complainant pointed out that this was not what the Commission stated in its letter dated 21 April 2009, where it declared that it would lift the general rule of reserving recruitments in the future if the Directorate General which requested the competition had no vacancies to offer in the specialists' functions concerned, and if there were no suitable laureates from generalists' competitions available to fill a vacancy. The complainant therefore considered that his status remained unclear.

32. In addition, he suggested that vacancies for officials in all EU institutions should be made accessible to the public ("like UN Agencies do") and not only be published in the closed intranet (Sysper) system. Alternatively, laureates on reserve lists should be granted a special password which would enable them to apply for such vacancies.

The Ombudsman's assessment

33. The Ombudsman first points out that the Staff Regulations confer a wide margin of discretion on the institutions regarding their recruitment procedures, including their evaluation of the interests of the service[3]. Review by the Community judiciary is limited to examining whether an authority used its discretion in a manifestly erroneous manner[4]. The Ombudsman has consistently applied the same approach when dealing with complaints concerning recruitment. However, even if the institution's decision about whom to recruit from a reserve list involves a large margin of discretion, this does not mean that the grounds for such a decision can be arbitrary, irrelevant or wrong. When selecting and recruiting candidates from a reserve list, an institution must, therefore, comply with the provisions laid down in the notice of competition and respect the relevant mandatory provisions of the Staff Regulations. In addition, the institution should be able to provide reasonable grounds for its decision.

34. As regards the exceptions it might make to recruitment from the List being restricted to Commission Delegations (paragraph 27 above), the Ombudsman finds the Commission's explanation to be satisfactory. He further considers that the Commission had not used its discretion improperly by establishing these conditions, including the challenged condition (c)[5]. He finds it perfectly reasonable that vacant positions in the Commission's headquarters could be filled by successful candidates from competitions which were originally organised to fill such positions. Moreover, discrimination cannot be alleged if the Commission compared successful candidates from one competition with those from another competition because, as the Commission explained, each competition has its own specific rules.

35. The Ombudsman further takes the view that the Commission’s use of its discretion should not necessarily be criticised if it did, in fact, recruit from a reserve list candidates who had already worked for the institution, such as contract and temporary agents, or who were, as claimed by the complainant, officials, provided that the conditions established by the Commission itself (mentioned above in paragraph 27), were satisfied, and the persons recruited possessed the skills required in the respective job descriptions.

36. The purpose of all recruitment is described in Article 27 of the Staff Regulations[6]. Under this provision, recruitment of officials must be directed to securing for the institution the services of persons with the highest standards of ability, efficiency and integrity. Furthermore, as already noted, according to established case-law, the appointing authority has a wide margin of discretion when seeking candidates with such standards[7]. When the candidates on the List who are officials or contract agents were initially recruited under Article 27 of the Staff Regulations or Article 12 of the Conditions of Employment[8], they had already demonstrated their high standard of ability, efficiency and integrity, precisely because they had passed the competition[9]. Their subsequent recruitment from the List cannot, therefore, be considered unreasonable. In addition, the complainant did not submit any evidence to indicate that those laureates who were recruited from the List for posts in the Commission headquarters did not provide the broad geographical representation required by Article 27 of the Staff Regulations, which other laureates from the List might have done. Similarly the complainant failed to provide any evidence that the laureates recruited did not possess the skills required in the job descriptions of the relevant posts. Finally, the complainant did not provide any evidence that the only persons chosen from the List and recruited to the headquarters were those who had previously worked for the institutions, leaving the remaining candidates on the List with recruitment prospects restricted to Commission Delegations.

37. In light of the above findings, the Ombudsman finds no maladministration as regards the complainant's allegation.

38. Nevertheless, the Ombudsman notes that that the competition in question was organised to establish a reserve list for a very specific field of activity, in which the institution could not reasonably expect to be able to offer many vacancies. He further notes that the validity of the List was maintained for many years with the reservation that it was restricted to recruitment by only one Commission DG. The Ombudsman considers that these facts may indeed give laureates the impression that the entire selection exercise was pointless. The Ombudsman suggests that such an impression could have been avoided, if the institution had provided a more accurate forecast of the real recruitment needs. Moreover, the Ombudsman considers that, from the moment the Commission decided to open the List for recruitment by all Commission DGs, it could have considered promoting the pro-active participation of candidates in applying for vacancies, which is something the Commission appears to welcome and encourage. This could have been done by giving them access to the Commission's intranet announcements of vacancies, as suggested by the complainant in his observations (paragraph 32 above). The Ombudsman will make a further remark below concerning these points.

39. As regards the complainant’s claim that he should be allowed to be recruited to positions other than those in Commission Delegations (DG AIDCO), the Ombudsman points out that, according to the case-law of the Community courts, candidates whose names are included in the list of suitable laureates have no right to be appointed to a vacant post. The Court of First Instance has held that they "… are merely eligible, and not entitled, to be appointed"[10]. The Ombudsman notes the Commission's latest decision in its opinion, which the Ombudsman understands replaces the Commission's previous decisions, namely that the complainant is currently "flagged" for the Commission following a request made by DGY, and that he will be contacted for an interview "in the coming weeks" and "depending on the outcome of the interview, the process may end with a formal job offer". The Ombudsman considers, therefore, that no further inquiry is justified into the complainant's claim.

B. Alleged unclear or contradictory explanation concerning the information provided to candidates. Related claims

Arguments presented to the Ombudsman

40. In his complaint, the complainant referred to several paragraphs of the Commission's reply of 21 April 2009 which, in his view, were unclear or contradictory when compared to the information he received directly from EPSO concerning his status on the List.

41. The complainant also noted that the reference to the competition grade in the Commission's letter did not accord with the grading for permanent staff according to the new Staff Regulations as of 1 April 2004. He further pointed out that, in the same letter, the Commission referred to the fact that, since 1 May 2004, more than 2 700 EU-15 officials and temporary agents had been recruited, but it did not give a breakdown in precise figures for the two categories of personnel.

42. He therefore claimed that the Commission should provide clearer explanations about the information which EPSO sends to candidates on reserve lists concerning their status, and the grade at which competitions are organised and that should provide precise figures for the number of EU-15 officials and temporary agents recruited since 1 May 2004.

43. In its opinion, the Commission did not consider that its explanation in its letter dated 21 April 2009 was unclear or contradictory. The Commission explained that "given the very high number of successful candidates (10 300)"[11], EPSO sends them individualised but automated messages regarding their status on the reserve list, and this message is based on the link between the laureates' EPSO profile and E-RL, the electronic application used by the institutions to access the reserve lists. This does not change the fact that throughout the validity of the reserve lists, the legal framework for each competition remains its own specific notice of competition.

44. The Commission clarified that the competition was launched before the new Staff Regulations entered into force on 1 May 2004 and that the AD function group did not exist at that time. The competition was therefore organised for the then existing category A, at grade A6/A7. In accordance with the transitional measures of the new Staff Regulations contained in its Annex XIII, the grade of the competition was adjusted to AD6. While the Commission's competitions are, in general, organised at the base grade (AD 5 for the AD function group), the level of the competition in question was fixed by taking into account the specific nature of the duties required.

45. The Commission also clarified that its wording in the letter dated 21 April 2009 "available for consideration by an institution with a quota in the list" has to be read as "available for consideration by the institution which has requested laureates when launching the competition". The Commission explained that this means that the successful candidate cannot be recruited to all services of the institution and to any type of post. The specific conditions stipulated in the notice of competition apply. The Commission further clarified that the reserve lists constitute a reserve of potential recruits for several years following the competition. The institutions can only recruit successful candidates when there is a vacant position to be filled, and if their profile suits the position.

46. The Commission finally informed the complainant of the number of EU-15 officials and temporary agents that had been recruited since 1 May 2004 to 1 September 2009, and it differentiated between these two categories of personnel (3 300 EU-15 officials and 773 EU-15 temporary agents).

47. In his observations, the complainant emphasised that the Commission's interpretation of the wording used in its letter dated 21 April 2009 "available for consideration by an institution with a quota in the list", which the Commission considers should be read as "available for consideration by the institution which has requested laureates when launching the competition", does not correspond with the wording EPSO proposed on its website, to which external laureates have access[12]. The complainant provided copies of EPSO's communications regarding his status on the List.

The Ombudsman's assessment

48. First, the Ombudsman considers that the Commission responded satisfactorily to the complainant's claim that it should provide him with information on (i) the precise number of officials and temporary agents recruited, and (ii) the grade at which the competition was organised.

49. The Ombudsman also thanks the Commission for explaining how EPSO communicates with candidates regarding their reserve list status, and its interpretation of statements EPSO made in its communications with the complainant.

50. The complainant referred to the discrepancy between the Commission’s clarification of his status and EPSO’s explanation with regard to "flagging", which it published on its website[13]. The Ombudsman points out that, even if EPSO's explanation ultimately does not appear to accord with the clarification given by the Commission in its opinion, it was EPSO which organised the competition for the Commission. Therefore, if any adjustments or corrections are necessary, it is EPSO, and not the Commission, which should carry them out. In this respect, the Ombudsman refers the complainant to his findings in paragraphs 19-21 above.

51. In light of the above, the Ombudsman considers that no further inquiry is justified regarding these aspects of the complaint.

Conclusions

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

The Ombudsman finds no maladministration as regards the complainant's first allegation. He considers that no further inquiries are justified as regards the second allegation and the complainant's claims.

The President of the Commission and the Director of EPSO will be informed of the present decision (the latter, in an anonymised version).

FURTHER REMARK

The competition in question was organised with the aim of establishing a reserve list for a very specific field of activity, in which the institution could not reasonably expect to be able to offer many vacancies. He further notes that the validity of the reserve list was maintained for many years with the reservation that it was restricted to recruitment to only one Commission DG. The Ombudsman considers that this may indeed lead laureates to believe that the entire selection exercise was pointless. The Ombudsman suggests that such an impression could have been avoided, if the institution had provided a more accurate forecast of the real recruitment needs. Moreover, the Ombudsman considers that, from the moment the Commission decides to open a list for recruitment to all Commission DGs, it could consider promoting the pro-active participation of candidates applying for vacancies, which is something that the Commission appears to welcome and encourage. This could be done by giving them access to the Commission's intranet system for announcing vacancies.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 29 June 2010

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[1] EPSO/AD/116/08, OJ 2008 C 16A.

[2] OJ 2008/C 16 A/01, Page 1.

[3] Case C-277/01 P Parliament v Samper [2003] ECR I-9873, par 42.

[4] Case T-258/03 Mausolf v Europol [2005] ECR-SC-I-A-45 and II-189, par. 49.

[5] That "there were no better suited successful candidates (from other competitions) to fill the vacancy".

[6] Article 27 of the Staff Regulations provides that: "[r]ecruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity recruited on the broadest possible geographical basis from among nationals of Member States of the Communities.…".

[7] Case T-248/02 Fiata v ESC [2003] ECR-SAC_I-A-281 and II-1365, par. 45.

[8] Article 12 (1) of the Conditions of employment of other servants provides that " "[t]he engagement of temporary staff shall be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities….".

[9] By analogy, Case T-357/04 Chetcuti v Commission [2006] ECR-SC-I-A-000, par. 56.

[10] See Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143. See also Article 30(2) of the Staff Regulations which states that "[t]he appointing authority shall decide which of these [suitable] candidates to appoint to the vacant posts".

[11] The Ombudsman understands that this figure refers to the current overall number of successful candidates on all valid reserve lists.

[12] http://europa.eu/epso/success/recru/info/index_en.htm.

[13] On EPSO`s website the following explanation is provided: "Green flag [means that] the candidate is not currently involved in any way with an institution. When the reserve list is published, all candidates are given a green flag. Whenever an institution sets another flag for a candidate, but subsequently decides that it is no longer interested in recruiting that person, it will return the candidate to green flag status. The comment you can read in your EPSO Account regarding your status in the reserve list will be as follows: "Laureate available for consideration by any institution with a quota in the list".