The background

1. In 2011, the complainant participated in Open Competition EPSO/AD/228/11 – Administrators (AD7) – Information and Communication Technologies (ICT). The complainant was excluded from the competition after the first stage of the Talent Screener phase, as he did not obtain the pass mark. That pass mark was set on the basis of a self-assessment by all the candidates. The complainant then complained to the Ombudsman that it was unjust and unfair that he was eliminated from the competition on the basis of answers whose accuracy was verified by the Selection Board only at a later stage.

2. The Ombudsman opened an inquiry into the complaint. In the course of the inquiry, the Ombudsman received the opinion of EPSO on the complaint. The complainant did not submit observations on it.

3. After having carefully examined the complainant's arguments and EPSO's opinion on the complaint, the Ombudsman noted that the complainant's main grievance was that he was eliminated from the competition after the first stage of the Talent Screener phase when the accuracy of his answer had not been verified by the Selection Board. She also noted that the Civil Service Tribunal has recently found^[1], in relation to a competition where a Talent Screener was used, that it could happen that candidates with superior qualifications would be eliminated from a selection procedure as a result of less qualified candidates: (i) interpreting the Talent Screener questions in a manner that is excessively favourable to their own qualifications and professional experience;  (ii) misunderstanding the questions; and/or (iii) failing to evaluate accurately their own academic qualifications or professional experience.

4. In the present case, the Selection Board set the pass mark for admission to the second stage of the Talent Screener phase at 16 (out of 18) points. The Selection Board then set the pass mark for admission to the assessment centre phase at 34 points. The complainant obtained a weighted score of 15 points at the first stage of the Talent Screener phase. Had his application been examined by the Selection Board and had he been awarded the maximum number of points for each question (4), he could have obtained a final score of up to 60 points. That mark would have amply surpassed the pass mark of 34 points.

5. The Ombudsman noted that EPSO must (i) aim at recruiting candidates with the highest level of qualifications and professional experience; (ii) leave to an independent selection board the task of assessing, on a case-by-case basis, if the academic qualifications or professional experience of a candidate corresponds to the level required; and (iii) ensure that candidates are selected in a consistent and objective manner^[2].

 

6. In these circumstances, the Ombudsman concluded that EPSO failed to check, after the first stage of the Talent Screener phase, that the answers of all candidates were accurate. She noted that the applicants in the above-mentioned court cases were granted an annulment of the decision excluding them from the competition. The Ombudsman considered that the complainant in the present case, who turned to the Ombudsman for help, should be treated in an equal manner.

 

7. In light of the above, and in line with the Ombudsman's mission to seek fair outcomes to complaints that satisfy both the complainant and the institution concerned, she made the following proposal for a friendly solution:

Alleged unfair elimination on the basis of the answers given in the Talent Screener

The Ombudsman's friendly solution proposal

EPSO could request the Selection Board to examine the answers of the complainant and could, if the Selection Board concludes that the number of points awarded to his application is above the pass mark, admit him to the next phase of the competition.

 

8. In its reply, EPSO accepted the Ombudsman's proposal for a friendly solution and stated that it would request the Selection Board to examine the complainant's answers in detail. Nonetheless, it noted that the Ombudsman's proposal was based on the consideration that the complainant should be treated in the same manner as the applicants in the court cases, the factual circumstances of which are identical to those of the present complaint.

 

9. EPSO pointed out that it could accept the Ombudsman's proposal only in respect of complaints submitted to the Ombudsman before the court issued its ruling. In such cases, any legal benefits available to the applicants under the court ruling should also be extended to the candidates who complained to the Ombudsman (instead of turning to the Court) in so far as is possible, and in any case within the limits set out in the notice of competition. However, if complaints had been submitted to the Ombudsman after the court ruling, complainants who had omitted to make use of the available legal remedies within the applicable deadlines could not rely on the ruling to claim the same benefits as the applicants in the court cases.

10.  The Ombudsman welcomes EPSO's constructive and practical approach to this case and its commitment to adopting the same approach in future similar cases. She agrees with EPSO's position that complainants to the Ombudsman should be granted the same benefits as successful applicants in court cases dealing with the same issue, provided that the complainants submit their complaints to the Ombudsman before the court delivers judgment on the cases before it.

The Ombudsman's assessment after the friendly solution proposal

Conclusion

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

EPSO has accepted the proposal for a friendly solution.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 8 October 2014