The background to the complaint

1. The complainant applied for Open Competition EPSO/AD/142/08[1] (Linguistic Administrators (AD5) in the field of translation having Spanish as their main language). On the basis of the results he obtained in the admission tests, he was not amongst the 120 best candidates. He was thus eliminated from the competition.

2. The complainant wrote to EPSO pointing out that the notice of competition stated that 240 candidates would be preselected and invited to submit a full application. The complainant therefore asked EPSO to reconsider his application. EPSO maintained its decision and indicated that a corrigendum had been published in the Official Journal, changing the number of preselected candidates from 240 to 120. The complainant then turned to the Ombudsman.

The subject matter of the inquiry

3. The complainant alleged that EPSO acted unfairly by modifying, after the competition had started, the number of candidates invited to submit a full application for Open Competition EPSO/AD/142/08.

4. The complainant claimed that EPSO should invite 240 candidates to submit a full application, as was initially provided by the notice of competition.

The inquiry

5. On 22 May 2009, the complainant addressed his concerns to the Ombudsman. On 22 June 2009, the Ombudsman opened an inquiry and forwarded the complaint to EPSO, which sent its opinion to the Ombudsman. The opinion was forwarded to the complainant, who then submitted his observations on 5 November 2009.

6. On 7 April 2010, the Ombudsman requested EPSO to provide him with additional information. EPSO's reply was forwarded to the complainant, who submitted observations on 17 June 2010.

The Ombudsman's analysis and conclusions

Preliminary remarks

7. In his observations, the complainant addressed a number of questions to EPSO. He asked EPSO to confirm that he would have been amongst the 240 best candidates. He also asked how many candidates obtained a mark just below 23.33 points, if there were 240 admissible applications, and, in case there were not 240 admissible applications, how many applications were admissible. These questions were not raised in the original complaint. Moreover, the complainant made no prior administrative approaches to EPSO regarding these matters. Therefore, the Ombudsman takes the view that these additional questions are not part of the present inquiry and advises the complainant to address his questions to EPSO.

A. Alleged unfair modification of the number of selected candidates after the competition had started and the related claim

Arguments presented to the Ombudsman

8. The complainant stated that, on 7 April 2009, EPSO informed him that he was not amongst the 120 best candidates. The following day, he requested EPSO to reconsider his results within the framework of the original competition notice, which provided for the selection of 240 candidates. On 30 April 2009, EPSO explained that, in competitions where no professional experience or university education in specific fields are required, experience showed that most candidates fulfil the eligibility criteria and that, in fact, Selection Boards are able to identify the correct number of candidates without having to evaluate all the application forms. When assessing candidates' applications, Selection Boards start with the applications of those candidates who received the best marks in the admission tests and stop as soon as they have selected the required number of eligible applications. Consequently, in order not to create false hopes or expectations amongst candidates, EPSO stated that it published a corrigendum reducing the number of selected candidates from 240 to 120. The complainant stated, however, that he was not informed of the corrigendum published in the Official Journal. If he had known that the number of candidates preselected had been decreased, he may not have travelled to Brussels for the tests. According to him, he was treated unfairly. He argued that the reasons put forward by EPSO did not justify the modification to the initial conditions of the competition. Moreover, he considered that he should not be affected by a corrigendum that was published after he took the tests.

9. In its opinion sent to the Ombudsman, EPSO pointed out that, on 19 February 2009, it informed the complainant that his application for the competition had been registered and that the booking period for the admission tests would start on 25 February and end on 9 March 2009. At the time of booking, the complainant had to choose the date on which he wished to take the admission tests and the test centre, given that test centres were available in all 27 Member States of the European Union. On 26 February 2009, EPSO confirmed the complainant's booking for 12 March 2009 and the test centre selected, namely, Brussels. On 13 March 2009, EPSO published a corrigendum in the Official Journal, which read as follows (in the original Spanish):

"Se invitará à los candidatos que obtengan las mejores notas (véase el cuadro que figura à continuación) en el conjunto de las pruebas de acceso, así como el mínimo requerido en cada una de ellas, a presentar su solicitud, completa para su posible admisión en la oposición general.

OPCIÓN 1 OPCIÓN 2

120 60"

The complainant's marks for the two admission tests did not place him among the 120 best candidates.

10. EPSO pointed out that the notice of open competition EPSO/AD/142/08 was finalised by the Appointing Authority, after having consulted the common Joint Committee[2]. The notice was published in the Official Journal on 26 November 2008, in accordance with the provisions of the Staff Regulations regarding the organisation of competitions[3]. The basic role of a competition notice is to inform those interested as clearly as possible about the nature of the requirements, so as to enable them to assess whether or not to apply. Under the provisions of the Staff Regulations on competitions, competition notices must be published in the Official Journal. Similarly, when EPSO intends to change any of the requirements included in a competition notice, a corrigendum has to be published in the Official Journal. The corrigendum published for Competition EPSO/AD/142/08 referred only to the candidates who passed the admission tests and who could be invited to submit a full application for their possible admission to the competition (the originally foreseen number of 240 candidates was reduced to 120). However, the number of candidates to be admitted to the subsequent stages of the competition was not modified. The number of candidates who could be admitted to the written tests remained at 60.

11. EPSO also explained that its past experience with competitions shows that the number of successful candidates specified in competition notices is not always reached. Often, there is too great a discrepancy between the number of candidates who obtain the best marks in the admission tests and the number of candidates who actually fulfil the requirements for admission to the subsequent tests. In order to overcome this problem, the Office has, since January 2008, systematically invited a greater number of candidates to submit full applications, in order to ensure that a sufficient number of candidates fulfils the admission requirements. This system has been applied in all competitions. However, in the context of the present competition, due to the specific nature of the pool of candidates, as well as the language required, the number of candidates proved to be excessive. This had two disadvantages for the candidates. On the one hand, the number of candidates invited to submit a full application was too high in comparison to the needs of the institutions, thereby rendering the procedure costly and useless for many candidates. On the other hand, the selected candidates found that the progress of the competition was slowed down significantly because of delays in the board's work arising from the fact that the number of applications it had to examine was too high in relation to the number of successful candidates specified in the competition notice. After examining the number of candidates invited to the admission tests and the number of candidates who actually attended, the Appointing Authority found that the pool initially foreseen was too large. It therefore decided to rectify the matter by publishing a corrigendum in the Official Journal of 13 March 2009[4].

12. EPSO considered that the publication of the corrigendum during the admission tests cannot be used to conclude that (i) certain candidates would have performed better in the admission tests if the competition notice had specified from the outset that the number of candidates would be 120, or (ii) certain candidates would have prepared themselves better for the tests. The candidates cannot actually foresee the minimum mark required for admission to the next stage of the competition, since the threshold for the best candidates cannot be known until all the admission tests have been marked. EPSO pointed out that, when the competition notice was published, the candidates were duly informed about the planned number of successful candidates, which was limited to 17 for Option No 1. This number did not subsequently change.

13. As regards the complainant's statement that if he had known about the change in the number of preselected candidates, he may not have attended the tests, EPSO considered that this relates to the individual behaviour of a candidate. A candidate's participation in, and preparation for, the competition tests are his or her sole responsibility. In its letter dated 19 February 2009, which informed candidates about the registration of their applications, EPSO advised them to consult its website on a regular basis in order to keep up-to-date with the latest developments concerning the competition. EPSO announced the publication of a corrigendum to the competition on its website and provided a hyperlink to the Official Journal containing the relevant information. EPSO thus fulfilled its duty of care towards candidates, who were properly informed about developments relating to the open competition for which they had applied. It was the duty of each candidate to follow the progress of the competition.

14. EPSO noted that the competition notice and the corrigendum constitute the legal framework that has to be observed both by EPSO and by the Selection Board. As a result, the complainant cannot be exempt from those provisions, as candidates in the same competition must be assessed under the same conditions. EPSO could not therefore consider inviting him to the next stage of the competition.

15. In his observations, the complainant stated that he received no e-mail informing him of the corrigendum published in the Official Journal. Indeed, he did not imagine that such a change would occur after the competition had started. According to him, EPSO's advice to consult its website regularly cannot be considered as official information.

16. Finally, the complainant considered that EPSO provided inadequate explanations for the corrigendum. On the basis of its experience, EPSO should have set the number of admissible applications when it launched the competition. Moreover, it should be able to anticipate the handling of a great number of applications. He claimed that the number of 240 preselected candidates should be reinstated.

17. In its further opinion, EPSO indicated that it had invited 123 applicants (including those who were placed equal) to submit a full application and 73 applicants were invited to the written tests (including those who were placed equal).

18. In his further observations, the complainant maintained that the corrigendum to the Official Journal was not legally valid. He noted that EPSO did not indicate whether he was among the 240 best candidates. He further noted that, in subsequent competitions, EPSO did not specify the number of candidates selected after each phase, which, according to him, shows that EPSO wishes to avoid candidates challenging the number of candidates selected during the pre-selection phase of a competition.

The Ombudsman's assessment

19. The notice of open competition EPSO/AD/142/08 was published in the Official Journal on 26 November 2008. For Option No 1, which was the option chosen by the complainant, the different stages of the competition were as follows:

• all applicants were allowed to take part in the admission tests;

• the 240 candidates who obtained the best marks in the admission tests were to be invited to submit a full application;

• from these 240 candidates, the 60 best candidates who met the admission requirements were to be invited to take part in the written tests;

• the 30 candidates who obtained the best marks in the written tests were to be invited to the oral exam;

• after the oral test, the names of the 17 best candidates were put on the reserve list.

20. The purpose of inviting 240 candidates to submit full applications, even though only 60 candidates would be invited to the written tests, was to ensure that EPSO had a sufficiently large pool of candidates who fulfil the minimum admission requirements. In sum, if EPSO had only invited the 60 best candidates to submit full applications, and certain of these candidates were, after a review of their full applications, deemed not to meet the minimum admission requirements, EPSO would have been faced with a situation in which it would have been unable to invite 60 candidates to the written tests.

21. It is necessary to underline that EPSO only needed to use the full applications to verify that the 60 candidates obtaining the best marks in the admission tests met the minimum admission requirements. The review of full applications did not affect the ranking of candidates established in the admission tests. This means that a candidate who was ranked number 121 after the admission tests would only be amongst the 60 candidates called to the written tests if at least 61 candidates with higher scores in the admission tests failed to meet the minimum admission requirements[5].

22. The Ombudsman notes that, as regards education, the minimum admission requirement in Open Competition EPSO/AD/142/08 was that candidates should have a university qualification corresponding to at least three years of studies. There was no requirement for candidates to hold a specific translation diploma. No professional experience was required either.

23. In this context, EPSO concluded that a very large number of candidates who took the admission tests were, in fact, likely to meet the minimum admission requirements. As a result, it decided to reduce the number of candidates who were invited to submit a full application after the admission tests. It implemented this decision by publishing a corrigendum in the Official Journal on 13 March 2009, in which it reduced to 120 the number of candidates selected after the admission tests.

24. The Ombudsman first notes that the reason EPSO gave to explain that it was unnecessary to invite 240 candidates to submit a full application after the admission tests was that the minimum admission requirements set out in the notice of competition were particularly low. In this context, the Ombudsman considers that there was no reason why EPSO could not have already come to the conclusion, when it first published the notice of open competition EPSO/AD/142/08 in the Official Journal on 26 November 2008, that it would be sufficient to invite only 120 candidates to submit a full application. Indeed, the completion of the admission tests in March 2009 did not provide EPSO with any information which it was not already aware of as regards the likelihood that a large percentage of candidates would meet the minimum admission requirements. In this context, the Ombudsman will make a further remark below.

25. The Ombudsman notes that, in the present case, it was possible to identify 73 candidates who met the admission requirements from amongst the 123 candidates invited to submit full applications. The Ombudsman notes, however, that while it was very unlikely that the reduction in the number of candidates called to submit full applications would give rise to a situation where EPSO would not have been able to identify 60 candidates to invite to the written tests, there was no absolute guarantee that this would be the case. In sum, in other factual circumstances (where, for example, out of the 123 candidates with the best results, fewer than 60 were found to meet the minimum admission requirements), such a reduction in the number of candidates invited to submit full applications would give rise to a situation where qualified candidates would have been excluded from the next round of tests. Although it is entirely appropriate for EPSO not to invite 60 candidates to the written tests if it bases itself on requirements set out in the original notice of competition, it would not be appropriate for EPSO not to invite 60 candidates to the written tests if it were to base itself on requirements established during the course of the competition. The Ombudsman is of the view that, as a matter of proper procedure, EPSO should not incur such risks[6] (even though in the present case such a risk did not give rise to a practical problem). In this context, the Ombudsman's further remark below will also cover this problematic aspect.

26. The complainant alleged that EPSO acted unfairly by modifying, after the competition had started, the number of candidates invited to submit a full application for open competition EPSO/AD/142/08. He also claimed that EPSO should invite 240 candidates to submit a full application, as was initially provided in the notice of competition.

27. The complainant obtained less than 23.333 points out of 30 in the admission tests. All of the 123 candidates invited to submit full applications obtained at least 23.333 points in the admission tests. The Ombudsman thus notes that, even if the complainant had been amongst the 240 best candidates after the admission tests, and even if he had been invited to submit a full application, he would not have been amongst the "60 best candidates that met the admission requirements". He would therefore not have been invited to the written tests, even if the change had not been introduced by the corrigendum of 13 March 2009. The same conclusion would be drawn for any other candidate not obtaining at least 23.333 points after the admission tests. In sum, EPSO's errors outlined above had no impact on the complainant. EPSO was, in the present case, able to identify 73 candidates who met the admission criteria from amongst the 123 best candidates. Thus, even if 240 candidates had been invited to submit full applications, EPSO would still have invited the same 73 candidates to the written tests. As such, the change introduced by EPSO was not the cause of the complainant's exclusion, or of any other candidates who were placed from position 124 to 240 after the admission tests.

28. As regards the complainant's argument that, if he had known that the number of candidates invited to submit a full application was only 120, he may not have taken part in the competition, the Ombudsman notes that the change did not affect any of the admission requirements or a test in the competition. There was no change in the number of candidates invited to the written tests (which was and continued to be the 60 candidates that obtained the best scores in the admission tests) and in the number of candidates invited to the oral tests (which was and continued to be 30 candidates). The change introduced by EPSO did not, therefore, affect the conditions in which the candidate sat the admission tests, the marks he obtained in the admission tests, his ranking and therefore his chances of been invited to an oral test.

29. The Ombudsman notes that, as provided for in Article 1 of Annex III to the Staff Regulations[7], the relevant notice of competition and its corrigendum were published in the Official Journal. Moreover, this information was also published on EPSO's website. The Ombudsman considers that these two publications were appropriate means through which to inform candidates of the change. He does not consider that EPSO should have sent an e-mail notification to the candidates' respective EPSO accounts.

30. The Ombudsman concludes that, in the present case, EPSO did not affect the candidacy of the complainant and of other candidates when it reduced the number of candidates called to submit full applications. There is therefore no maladministration by EPSO as regards the complainant's exclusion from the competition. His claim cannot therefore be sustained.

B. Conclusions

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

There is no maladministration by EPSO and the complainant's claim cannot be sustained.

The complainant and EPSO will be informed of this decision.

Further remark

EPSO could calculate better and more carefully the number of candidates invited to submit a full application after passing the admission tests. This number should be necessary and sufficient to ensure that neither too many candidates nor too few candidates are admitted to the written exams. Such an arrangement will spare EPSO from having to change the rules of an ongoing competition.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 November 2010

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[1] OJ 2008 C 303 A, p. 1.

[2] The common Joint Committee is an interinstitutional committee and is consulted on draft notices of open competitions to be organised by EPSO.

[3] Article 1 of Annex III to the Staff Regulations.

[4] OJ 2009 C 59 A, p. 1

[5] In order for the system of inviting 240 candidates to submit full applications to give rise to a situation where EPSO would be unable to invite 60 candidates to the written tests, more than 3 out of 4 of the 240 best candidates would have to fail to meet the minimum admission requirements.

[6] On 16 March 2010, EPSO introduced new selection procedures. As a result, notices of competition no longer refer to the number of preselected candidates invited to submit a full application. EPSO only gives an approximate number of candidates admitted to the assessment centre, that is, approximately three times the number of successful candidates indicated in the competition notice, OJ 2010 C64 A, p. 1.

[7] Article 1 of Annex III to the Staff Regulations states that: "notice of open competitions shall be published in the Official Journal of the European Communities not less than one month before the closing date for applications and, where applicable, not less than two months before the date of the tests."