THE BACKGROUND

Complaint 2166/2008/WP:

1. The present own-initiative inquiry is based on a complaint that was lodged by Professor B., a scientist of Turkish nationality (complaint 2166/2008/WP). On 28 May 2008, the European Personnel Selection Office (EPSO) published on its website calls for expressions of interest for temporary agent posts in the newly created European Research Council Executive Agency (ERCEA) and in the Research Executive Agency (REA). Professor B. decided to take part in the selection procedure for temporary agents to be recruited by ERCEA. The closing date for applications was 18 June 2008.

2. The selection procedure was originally restricted to nationals of the EU Member States. It was, however, subsequently extended to nationals of 'FP7 partner countries', that is to say, partner states under the EU's Seventh Framework Programme for Research and Development[1]. Turkey fell within that group of countries.

3. When preparing his application, Professor B. noted that candidates were not only required to be fluent in English, but also in a second official language of the European Union (EU). Professor B. took the view that this requirement was indirectly discriminatory, since it appeared to favour nationals of EU Member States. He added a corresponding note to his application.

4. Some time after he had submitted his application, Professor B. was informed that he was not eligible for the competition. The nationality requirement had in the meantime been changed and only nationals of EU Member States were allowed to apply. Professor B. turned to the European Ombudsman arguing that this decision was both wrong and discriminatory.

Own-initiative inquiry OI/2/2008/(WP)VIK:

5. Upon examining the above complaint, the Ombudsman found that Professor B. was neither an EU citizen nor resident in an EU Member State. Pursuant to Article 228 of the Treaty on the Functioning of the European Union, Professor B. was thus not authorised to complain to the Ombudsman. The Ombudsman, could not, therefore, open an inquiry into his complaint as such. However, he took the view that the complaint raised a serious issue, which also appeared to concern the selection procedure for temporary agents for REA. The Ombudsman therefore decided to launch the present own-initiative inquiry into the issues raised by the complaint.

THE SUBJECT-MATTER OF THE OWN-INITIATIVE INQUIRY

6. The Ombudsman identified the following issues:

1. The decision to withdraw the possibility for nationals from the FP7 partner countries to apply for temporary agent posts in ERCEA and REA was potentially wrong and discriminatory.
2. It seemed that candidates who were concerned by this decision were not provided with any explanations for the decision and that they were not offered an apology.
3. The requirement that candidates had to be able to speak a second official language of the EU was potentially discriminatory because it favoured nationals of EU Member States.

THE INQUIRY

7. On 12 September 2008, the Ombudsman launched his own-initiative inquiry. He asked EPSO to provide an opinion on the above-mentioned issues.

8. By letter of 24 September 2008, EPSO informed the Ombudsman that the selection procedures in question fell within the European Commission's responsibility and that EPSO had only provided logistical support. EPSO stated that it had, therefore, forwarded the Ombudsman's letter to the Commission.

9. On 29 September 2008, the Commission informed the Ombudsman that it was indeed competent to deal with this matter.

10. The Commission provided its opinion on 20 January 2009. The opinion was forwarded to Professor B for his observations. No observations were received from him.

11. On 20 October 2009, the Ombudsman launched further inquiries. He asked the Commission to clarify certain aspects of the case. On 11 March 2010, the Commission sent its reply. This reply was forwarded to Professor B., who did not submit any observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. As regards the first issue

Arguments presented to the Ombudsman

12. Professor B. argued that the Commission's decision to exclude candidates from the FP7 partner countries, and especially from Turkey was wrong and discriminatory. He submitted that this approach impeded the progress of science in Europe. Professor B. pointed out that Turkey was contributing EUR 1.5 million every year to the FP7 programme and that it was thus incomprehensible why Turkish scientists could be excluded from the selection process. In his view, Turkish scientists had an "inherent right" to apply for posts relating to the evaluation of projects submitted under the FP7 programme.

13. In its opinion, the Commission explained that ERCEA and REA were created by its Decision of 14 December 2007[2]. During the first part of 2008, the necessary procedures were put in place to start recruiting staff for these agencies, in line with the establishment plans approved by the Budgetary Authority. When calls for expression of interest for temporary agent posts at ERCEA and REA were published on the EPSO website, the selection procedures were restricted to nationals of EU Member States only.

14. On 5 June 2008, following a proposal from the Mission of Norway, these calls for expressions of interest were extended so as to cover applicants from FP7 partner countries (Iceland, Liechtenstein, Norway, Israel, Switzerland, Albania, Croatia, Macedonia, Montenegro, Serbia and Turkey). The deadline for applications was extended to 25 June 2008.

15. However, following further internal discussions about the operational consequences brought about by the extension of the call for expression of interest to which Professor B. had replied, the said call was cancelled on 24 June 2008. Applicants were sent an e-mail informing them about the cancellation. The call concerning REA was also cancelled.

16. On 15 July 2008, the calls were republished for nationals of EU Members States only, with a deadline for applications set as 14 August 2008. Still on 15 July 2008, prior applicants and those persons who had written to the general mailboxes were informed by e-mail of the new publication.

17. The Commission submitted that calls relating to temporary agent posts, whether in the Commission or its Executive Agencies, are subject to the Conditions of Employment of Other Servants of the European Communities ('CEOS'). According to Article 12(2) CEOS, such calls are open to nationals of EU Member States only. The Commission noted that, by derogation, calls can, however, be opened to nationals of other states at the discretion of the Appointing Authority.

18. The Commission pointed out that, in general, there were sound reasons to open the calls to states that contribute to the budget of the programmes managed. However, this reasoning should not obscure the fact that the FP7 partner countries are not on an equal footing with the EU Member States. The benefits for these countries focus on the results gained from the FP7 programme, rather than being related to the management thereof. In support of this statement, the Commission noted, for example, that the participation of FP7 partner countries in the FP7 programme committees was on a non-voting basis.

19. The Commission further added that, notwithstanding the arguments in favour of widening the calls in question, the delegation of some of its powers to the Executive Agencies in order to implement the FP7 programme implied a set of operational consequences. These resulted from the legal and administrative conditions, which rendered it difficult to involve non-EU nationals. In particular, it was considered likely that candidates from non-EU Member States would have to undergo specific security checks which, in order properly to comply with EU legislation on data protection, would necessarily imply a delay in the selection procedure. Whilst the competent services tried to do their best, it proved impossible to address all the relevant issues in good time and to maintain a chance of completing the recruitment procedures satisfactorily and within a reasonable time span. The Commission underlined in this context the overriding necessity to get the agencies up and running. It added that, for this reason, it decided to cancel the calls and publish new ones that were limited to nationals of EU Member States.

20. After having carefully analysed the above arguments, the Ombudsman considered that further inquiries were necessary. He therefore addressed the following question to the Commission:

"The Commission argued that excluding non-EU candidates was necessary in order to ensure that the relevant agencies could start functioning as soon as possible. The Ombudsman notes, however, that the deadline for applications of the original calls was 25 June 2008, whereas applications under the new calls were to be submitted by 14 August 2008, i.e., nearly two months later. Given that the approach adopted by the Commission thus in itself delayed the recruitment procedures, could the Commission please specify why it nevertheless considered that excluding applicants from non-EU countries was necessary in order to secure a timely recruitment as regards the posts concerned? Could the Commission please also indicate how many candidates from non-EU countries applied in reply to the original calls?"

21. In its reply, the Commission submitted that the new publication did indeed delay the recruitment procedures by nearly two months. It reiterated in this context that its Security Directorate considered that it would be essential to screen any third-country candidates who were entered on to the reserve list before any jobs could be offered. The fact of undertaking additional security screening of such candidates would have had to be mentioned in the calls, which were, however, already published at the time. In addition, the European Data Protection Supervisor (EDPS) would also have had to be consulted on the subsequent processing of personal data. In the Commission's view, such consultation would have taken a number of months and would have jeopardised the timing of the recruitments. The Commission noted that the delay caused by cancelling and republishing the calls "was felt to be shorter".

22. The Commission added that, at the relevant moment in time, detailed internal discussions had taken place between various Commission services. A particular concern was expressed, namely, that opening the calls to non-EU nationals risked creating a precedent in an area of EU policy where discussions were continuing on the association of further countries to the EU programmes.

23. In view of the above, and in order to address the need for rapid recruitment, the Commission decided to cancel and republish the calls in question.

24. In reply to the Ombudsman's question regarding the number of persons concerned, the Commission specified that, at the moment the initial calls were cancelled, 5328 applications had been submitted, 46 of which were from nationals of non-EU countries. These 46 applications were submitted by a total of 27 candidates. However, the measure of closing the calls to non-EU nationals only affected 21 candidates, since the remaining applications were in any event ineligible.

The Ombudsman's assessment

25. Professor B. argued that the Commission's decision to withdraw the possibility for nationals of FP7 partner countries to apply for the temporary agent posts concerned was both (i) wrong and (ii) discriminatory. The Ombudsman will therefore analyse these two aspects below.

As regards point (i) above:

26. Article 12(2)(a) CEOS provides that "a member of the temporary staff may be engaged only on condition that he is a national of one of the Member States of the Communities, unless an exception is authorised".

27. In the present case, the Commission initially limited the calls for expressions of interest for temporary agent posts in ERCEA and REA to nationals of EU Member States. In the Ombudsman's view, Article 12(2)(a) CEOS entitled the Commission to act in this way.

28. Professor B. argued that Turkey was contributing a considerable amount of money to the budget of the FP7. In his view, Turkish nationals therefore had an inherent right to apply for posts relating to the evaluation of projects under this programme. However, and as the Commission rightly pointed out, Article 12(2)(a) CEOS provides that, as a rule, such calls are open to nationals of the EU Member States only. The Commission was, therefore, not obliged to extend these calls to nationals of the FP7 partner countries.

29. However, Article 12(2)(a) CEOS allows for exceptions to the above-mentioned general rule of eligibility. The contributions provided by FP7 partner countries are clearly a factor that can be taken into account in this context. The Commission acknowledged that there were sound reasons to open the calls to states that contribute to the budget of the programmes managed. The Commission's decision to open the calls – that had originally been limited to EU nationals – to nationals of the FP7 partner countries, including Turkey, was therefore understandable.

30. It should be noted, however, that the Ombudsman does not have to examine the initial decision to limit the calls in question to EU nationals or their subsequent extension to nationals from the FP7 partner countries. What he has to examine is whether the Commission's decision to withdraw the possibility for nationals from FP7 partner countries to apply, namely, its decision to revoke its previous decision to open the relevant calls to nationals from the FP 7 partner countries, was justified and in accordance with principles of good administration.

31. In support of its approach, the Commission invoked administrative and time constraints relating to the recruitment process. The Commission argued that it had to ensure ERCEA and REA started functioning as soon as possible. Non-EU nationals would have to be security screened, which would necessitate consultations with the EDPS regarding the processing of personal data. Consequently, the Commission was afraid that proceeding with the amended calls – and thus allowing candidates from FP7 partner countries to participate – would both delay and jeopardise the timely completion of the selection procedures. The Commission argued that it was for this reason that it decided to cancel the calls and publish new ones that were restricted to EU nationals.

32. The Ombudsman does not find this argument convincing.

33. As already noted above, the Commission's decision to cancel the amended calls and publish new ones in itself led to a delay of almost two months. The Commission in essence argues that the delay that would have been caused by admitting candidates from the FP7 partner countries would have been even longer. The Ombudsman is clearly not in a position to verify this statement. However, three comments should be made in this context. First, in its reply to a specific question concerning the issue put to it by the Ombudsman, the Commission stated that the delay caused by cancelling and republishing the calls "was felt to be shorter". This seems to suggest that the Commission did not proceed to any concrete checks regarding how long the delay would be. Second, it emerges from the information provided by the Commission that the number of candidates who were nationals of FP7 partner countries was minimal compared to candidates who were EU nationals. It is also fair to assume that not all 21 candidates from the FP7 partner countries, whose applications were admissible, would have been retained in the end. It thus cannot be excluded that the security screening and the consultations with the EDPS on the processing of personal data could have been completed fairly rapidly. Third, Professor B. pointed out, without being contradicted by the Commission, that he had already worked as a scientific expert for the Commission. The Ombudsman therefore wonders why the complainant would have had to undergo a security screening.

34. The Commission also submitted that admitting applicants from the FP7 countries could create a precedent in an area of EU policy where discussions were continuing on the association of further countries to the EU programmes. The Ombudsman has certain doubts whether this is a valid argument, given that the Commission itself accepts that there were in general sound reasons to open the calls to states that contribute to the budget of the programmes managed.

35. The Ombudsman considers, however, that he does not need to ascertain whether the reasons put forward by the Commission could indeed justify the exclusion of candidates from FP7 partner countries. As a matter of fact, the Ombudsman considers that all these reasons should have been considered before the Commission decided, on 5 June 2008, to open the relevant calls for national from FP7 partner countries. It is clearly not good administrative practice to first take a decision and only then to examine the potentially negative consequences it could lead to. If, after properly examining all the relevant considerations, the Commission had concluded that extending the relevant calls to nationals from FP7 partner countries would have the negative consequences it referred to in its opinion, it would in all likelihood not have opened the calls to these persons. It could thus have easily avoided the problems its Decision of 5 June 2008 entailed. In the Ombudsman's view, citizens must not become victims of overly rash decisions adopted by administrations.

36. In view of the above, the Commission's decision to withdraw the possibility for nationals from FP7 partner countries to apply, which had been created by its decision of 5 June 2008, could only be justified if there were imperative reasons requiring this step to be taken. If the Commission had shown beyond doubt that it would have been impossible to allow the candidates from the FP7 partner countries to take part in the calls and get the agencies up and running rapidly, the Ombudsman would have been able to conclude that the decision at hand was justified. However, and as explained above, the Commission has not provided clear and convincing evidence or arguments to show that this was indeed the case.

37. In these circumstances, and in the absence of a convincing justification, the Ombudsman concludes that the Commission's decision to withdraw the possibility for nationals from FP7 partner countries to apply, that is, its decision to revoke its previous decision to open the relevant calls to nationals from the FP7 partner countries, constituted an instance of maladministration. A critical remark will be made below.

As regards point (ii) above:

38. As regards the alleged discriminatory nature of the Commission's decision to withdraw the possibility for nationals from FP7 partner countries to apply for temporary agent posts in ERCEA and REA, the Ombudsman recalls that, in accordance with the settled case-law, discrimination occurs where identical or comparable situations are treated in an unequal way and where this unequal treatment is not objectively justified.

39. However, Article 12(2) CEOS clearly allows nationals from non-EU countries to be treated differently from EU nationals in so far as access to posts as temporary agents is concerned. In these circumstances, no discrimination can be established in the present case.

B. As regards the second issue

Arguments presented to the Ombudsman

40. Professor B. alleged that applicants affected by the Commission's decision were not provided with any explanations and were not offered an apology.

41. The Commission pointed out that, on 24 June 2008, when the original calls for ERCEA and REA were cancelled, a notice was placed on EPSO's website. In this notice, the Commission apologised for the inconvenience caused. Candidates who had applied for a position at REA were also sent an e-mail repeating the apology, while ERCEA preferred to wait before sending e-mails in order to decide on the practicalities of reopening the call.

42. The Commission further noted that, when the new publication was made on 15 July 2008, every candidate (including those from the FP7 partner countries) who applied under the amended calls received an e-mail. In the e-mails sent to candidates who were registered as non-EU nationals, it was specified that they should check the terms of the call. Finally, the Commission explained that an additional clarification was added to each published profile.

43. In its opinion, the Commission apologised for the inconvenience caused to candidates concerned by the decision to withdraw the possibility for nationals of the FP7 partner countries to apply for temporary agent posts in ERCEA and REA. It furthermore expressed its regret that the candidates concerned by this decision were not offered an earlier apology.

44. In the framework of his further inquiries, the Ombudsman also asked the Commission to reply to the following question:

The Ombudsman takes the view that the Commission did not have to indicate any reasons for its initial decision to limit the calls concerned to EU nationals. However, the present case concerns a situation where non-EU nationals were subsequently admitted, where at least one such non-EU national applied and where the Commission then decided to change its position again and to limit the posts concerned to EU nationals. Against this background, could the Commission please explain why it did not inform candidates of the reasons of its decision and why, apart from apologising in general terms for the inconvenience caused, no specific apology was offered to candidates from non-EU countries who had applied but who were no longer eligible as a result of the decision taken by the Commission?

45. In its reply, the Commission pointed out that it would have readily offered further information on the reasons for its decision to anyone who requested it. However, in this case, no one had requested such information from the Commission or EPSO before the Ombudsman was approached.

46. As regards the Ombudsman's question why the Commission did not provide a specific apology to candidates from non-EU countries, the institution regretted that no such specific apology was offered to candidates whose applications were likely to have been rendered ineligible by the decision to republish the call. The Commission noted that a speedy resolution to the issue was required at the time. Unfortunately, in an effort to republish the call quickly, the issue of sending a specific apology with the reasons for the cancellation of the call was not addressed.

47. The Commission apologised to Professor B. for not having explained the reasons for its decision at the time. It pointed out that it would endeavour to avoid similar situations in the future.

The Ombudsman's assessment

48. In the course of the inquiry, the Commission provided copies of the information sent to applicants when it cancelled the original calls and when it subsequently relaunched the new calls. When the new calls for ERCEA and REA were published, the Commission clearly informed the candidates that, in order "to be eligible for this call, [the applicant] must be a national of a Member State of the European Union". The Commission did not, however, provide any explanations as to why the previous calls had been cancelled and why the eligibility requirements relating to the applicants' nationality had been changed.

49. Principles of good administration require an Administration to give citizens precise reasons for any decisions it takes that may affect them[3]. As noted above, in the present case, the Commission failed to provide reasons for its decision to alter the eligibility requirements. The institution simply informed the persons concerned about the relevant change. The Ombudsman fails in particular to understand why the Commission did not include any such explanation in the e-mails sent to non-EU applicants, given that these were the persons directly affected by the change. It would also have been courteous for the Commission to offer a clear apology in this context.

50. In the course of the Ombudsman's inquiry, the Commission, however, acknowledged that it had omitted sending a specific apology to non-EU applicants with the reasons for the cancellation of the calls. It apologised for this omission and offered a specific apology to Professor B. in this context. The institution moreover explained the reasons for its approach and committed itself to avoiding similar situations in the future. In view of the above, and taking into consideration that two years have now passed since the relevant events, the Ombudsman takes the view that no further inquiries concerning this aspect of the case are needed.

C. As regards the third issue

Arguments presented to the Ombudsman

51. Professor B. contested the requirement that candidates had to be able to speak a second official language of the EU and argued that this requirement was discriminatory, since it favoured nationals of EU Member States.

52. The Commission pointed out that the requirement to speak two of the official languages of the EU was a requirement laid down in the Staff Regulations and CEOS and that there was no possibility to derogate from this requirement.

The Ombudsman's assessment

53. Article 12(2)(e) CEOS provides that a member of temporary staff may be engaged only on condition that "he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties."

54. As the Commission pointed out, the requirement to have a thorough or satisfactory knowledge of at least two of the official EU languages is a statutory requirement, which is not subject to derogations. The Ombudsman thus takes the view that no maladministration can be found as regards this aspect of the case.

D. Conclusions

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

Good administrative practice requires that, before taking a decision, an institution must properly examine the negative consequences to which it could lead. In the present case, after initially limiting the calls for temporary agents in ERCEA and REA to EU nationals, the Commission admitted applicants from FP7 partner countries without properly examining the consequences. Its subsequent decision again to exclude candidates from FP7 partner countries from the said calls therefore constitutes maladministration, given the absence of clear and convincing evidence or arguments to show that this decision had to be taken for imperative reasons.

Professor B. and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 10 August 2010

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[1] More information about the EU's Seventh Framework Programme (FP7) for Research and Technological Development is available at: http://cordis.europa.eu/fp7

[2] Commission Decision No. 2008/46/EC of 14 December 2007 setting up the 'European Research Council Executive Agency' for the management of the specific programme 'Ideas' in the field of frontier research in application of Council Regulation (EC) No 58/2003 (OJ 2008 L 11, p. 9).

[3] Article 18 (Duty to state the grounds of decisions), European Code of Good Administrative Behaviour, available at: www.ombudsman.europa.eu