The case concerned EPSO's practice in Open Competitions of prohibiting candidates from participating in 'parallel competitions', that is, staff recruitment competitions that are organised together, are identical in terms of the type of post, but differ as to the level of professional experience required and, consequently, the grade attached to the post.

The Ombudsman inquired into the issue and found that the prohibition on candidates participating in parallel competitions is incompatible with EU law and good administrative practice and thus constitutes maladministration. EPSO's proposal to make some changes to its practice does not suffice to fully remedy this instance of maladministration.

The background

1. The complainant is a citizen who is concerned about EPSO's practice of prohibiting candidates from participating in parallel competitions, that is, competitions that are organised together, are identical in terms of the type of post, but differ as to the level of professional experience required and, consequently, the grade attached to the post.

2. On 6 May 2012, the complainant lodged a complaint with the European Ombudsman about EPSO's practice with regard to parallel competitions.

3. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

Allegation:

By prohibiting candidates from participating in parallel competitions, EPSO fails to comply with the law and with principles of good administration.

Claim:

EPSO should abandon its practice of prohibiting candidates from participating in parallel competitions.

Allegation that, by prohibiting candidates from participating in parallel competitions, EPSO fails to comply with the law and with principles of good administration and the related claim

The Ombudsman's recommendation

4. In the course of the inquiry, the Ombudsman received EPSO's opinion on the complaint and, subsequently, the comments of the complainant in response to EPSO's opinion. In addition, the Ombudsman carried out further inquiries asking EPSO to address a number of questions. The Ombudsman received EPSO's reply and the complainant's comments on that reply. When addressing the recommendation to EPSO, the Ombudsman took into account the arguments and opinions put forward by the parties[1].

5. The prohibition on candidates from taking part in parallel competitions is not explicitly provided for in EPSO's Guide to Open Competitions, which merely states that candidates are not allowed to take part in competitions that are "incompatible". However, in practice, EPSO considers parallel competitions to be "incompatible" with each other.

6. This prohibition was examined with regard to the applicable law and the principles of good administration. The relevant legal provision is Article 27 of the Staff Regulations, as interpreted by the Civil Service Tribunal in the Di Prospero judgment[2].

7. In Di Prospero, the Civil Service Tribunal recognised that, for it to be lawful, any condition concerning admission to a competition must comply with a dual requirement. First, the relevant clause needs to be justified by requirements connected with the post to be filled and, more generally, by the interests of the service. Second, that clause needs to comply with the objective of Article 27(1) of the Staff Regulations, that is, to recruit "officials of the highest standard of ability, efficiency and integrity"[3]. Considerations of a purely practical nature, deriving from the practical difficulties of organising and conducting competitions, do not come within the interests of the service[4]. In fact, the numerous arguments relating to the practical difficulties submitted by the European Commission (which represented EPSO before the court) were rejected by the Civil Service Tribunal[5]. The Commission did not appeal against that judgment.

8. The option provided for in Point I.2 of the Notice of Competitions permits candidates who take the computer based test (CBT) and meet the AD7 points threshold, but who do not have the professional experience required for this competition, to be reassigned to the AD5 competition, if they so wish[6]. The Ombudsman recognises that this mitigates to some extent the negative effects of the prohibition on taking part in parallel competitions.

9. However, this mitigation is limited. The Ombudsman found that, according to the Notice of Competitions[7], the possibility for reassignment is not available to a candidate who meets the professional experience requirement for the AD7 competition but fails to meet the CBT threshold for that competition. That candidate will be excluded from the AD5 competition even if he meets the (lower) CBT threshold for that competition. The effect of this restriction is that a candidate, who meets all the requirements and has achieved the same CBT test result as other AD5 candidates, is not permitted to take part in the AD5 competition. The Ombudsman points out that the CBT tests are identical for both AD5 and AD7.

10. EPSO argued that its prohibition on participation in parallel competitions is justified, among others, because: 1) the same candidate cannot appear twice on a reserve list, 2) the selection procedure may thus be finalised in a timely manner, and 3) the comparative assessment of candidates may be improved. The Ombudsman took the view that these are considerations of a purely practical nature which, as the Civil Service Tribunal ruled in Di Prospero, do not come within the interests of the service and should therefore be rejected.

11. In light of these considerations, the Ombudsman concluded that EPSO had failed to establish that prohibiting candidates from participating in parallel competitions is compatible with EU law and good administrative practice. In fact, the Ombudsman found that EPSO's practice was both contrary to EU law and contrary to the requirements of good administration and that this constituted maladministration. Therefore, in September 2014, the Ombudsman made the following recommendation to EPSO, in accordance with Article 3(6) of the Statute of the European Ombudsman:

"EPSO should revise its Guide to Open Competitions and allow candidates to participate in parallel competitions in the future."

12. In its reply to the Ombudsman's recommendation of 11 June 2015, EPSO argued (a) that the vast majority of competition procedures does not contain such a prohibition, (b) that this prohibition has been rendered compatible with Article 27(1) of the Staff Regulations and the Di Prospero judgment through the introduction of the reassignment mechanism[8] (which EPSO calls the "passerelle" clause); and that, (c) following Di Prospero, the Civil Service Tribunal examined this prohibition in the context of a subsequent case and considered it legal[9].

13. In addition, EPSO put forward that its implementation of the Ombudsman's recommendation raises significant policy issues regarding the organisation of open competitions. EPSO's Management Board examined this issue at its meetings of 23 January and 6 May 2015 and concluded that enabling unrestricted simultaneous applications for competitions in parallel to the currently used passerelle system would be counterproductive and contrary to the interests of both the candidates and the EU Institutions. It stated that in the opinion of both EPSO and the EU Institutions, such a change would, in fact, significantly reduce the opportunities for those candidates who are eligible for the lower-grade competition only to be included on the reserve list. These candidates are likely to be "pushed out" by those candidates who are also eligible for the higher grade and who decide to compete at both levels, since those who achieve a high score in one Assessment Centre are very likely to achieve a similarly high score in the other. At present, on average, 6% of successful candidates feature simultaneously on more than one reserve list. Allowing unrestricted applications in parallel competitions would inevitably result in a far higher percentage of successful candidates being included on both lists.

14. In EPSO's view, having successful candidates in both lists would jeopardise the EU Institutions' ability to meet their staffing needs, in particular as regards the recruitment of younger professionals at entry-level grades. Allowing candidates to apply for parallel competitions would have potentially a very serious impact from a value for money, budgetary and organisational viewpoint, with increased CBT and test development costs, more demand for Selection Board Members, IT and human resources implications, and increased duration of competitions.

15. Nevertheless, EPSO recognised that the Ombudsman had rightly identified the shortcomings of the passerelle mechanism currently in use[10]. EPSO agreed with the Ombudsman's assessment that, as a consequence of the passerelle system, the possibility of reassignment is not available to those candidates who meet the eligibility requirements for the higher grade, but do not meet the CBT threshold for it. Those candidates currently cannot be reassigned to the lower-grade competition even if they are willing to be considered for it, and meet the - possibly lower - CBT threshold for that grade. In addition to limiting, as far as possible, the publication of parallel competitions, EPSO argued that these shortcomings could be rectified without modifying the essence of the passerelle system.

16. Specifically, EPSO proposed a new model of the passerelle clause, where the selection board would establish the list of candidates admitted to the Assessment Centre of the two competitions successively. As a first step, the highest-scoring candidates, who also meet all eligibility conditions, should be invited to the higher-grade Assessment Centre. At the same time, the selection board would also identify all those candidates in the higher-grade competition who (a) accepted the possibility of reassignment, and (b) are not included among the candidates invited to the Assessment Centre (regardless of whether the reason for their non-invitation was that their CBT score was not high enough, or that they did not meet the eligibility conditions) and automatically reassign them to the lower grade Assessment Centre. The reassignment would occur at the stage of the lower-grade competition where the candidates' CBT results are known, but the eligibility checks and the establishment of the list of candidates invited to the Assessment Centre have not yet taken place. EPSO went on to state that "[t]he original lower-grade population would thus be merged with the reassigned candidates, and a final ranking in descending order of the CBT scores would be established, to serve as the basis for the eligibility checks. The highest-scoring candidates who also meet all eligibility conditions would then proceed to the lower-grade Assessment Centre".

17. EPSO expressed its confidence that this improved model of the passerelle mechanism strikes an optimal balance between meeting the EU Institutions' staffing needs and maximising individual candidates' chances of being recruited, whilst at the same time fully respecting the applicable legal framework as well as the principles of good administration. EPSO stressed that this modification would require significant modification to EPSO's IT systems. However, since this work is not part of the IT plan for 2015, EPSO was not in a position to identify when the new passerelle mechanism would be effective.

18. In his observations on EPSO's reply, the complainant stated that he had nothing to add to the submissions he already made in the course of this inquiry.

The Ombudsman's assessment after the recommendation

19. It is clear from the above that EPSO has not accepted the Ombudsman's recommendation. The Ombudsman clearly set out in her recommendation[11] that, notwithstanding the mitigating effects of the passerelle clause, the prohibition in question remains incompatible with EU law and the principles of good administration. The arguments put forward by EPSO for its refusal to remove the prohibition on taking part in parallel competitions are of a purely practical nature and, thus, not in line with CST's ruling in Di Prospero.

20. EPSO's argument, that the candidates who meet the eligibility requirements for the lower-grade competition only will be disadvantaged if better performing candidates (who also take part in a competition for a higher grade) take part in the competition against them, is devoid of all logic. It simply implies that a candidate with less experience should be protected from competition from a more experienced and, possibly, stronger candidate. However, this would run counter to the very notion of an open competition which is to select the better candidate.

21. As regards the argument that the EU institutions' staffing needs will not be met (if the same candidates appear on various lists), it should be noted that this already occurs and has always occurred without significant problems. It is also very limited in scope since it presumes that many candidates will be successful in both competitions.

22. Finally, the effects can be very easily mitigated by simply choosing to increase slightly the number of successful candidates put on lists to take account of this eventuality.

23. EPSO's argument, that the Civil Service Tribunal in a subsequent judgment (Demeneix) "already had the opportunity to examine the limitation in question and considered it legal", cannot be accepted[12]. In fact, in that judgment, the Civil Service Tribunal did not examine the prohibition on taking part in parallel competitions[13]. The issue before the Civil Service Tribunal in that case was whether the re-assignment of a candidate to a lower-grade competition may be done only before the Assessment Centre stage of the competition. The Civil Service Tribunal found that there was no error in law in the decision not to re-assign a candidate to the lower-grade competition in circumstances where the candidate, though successful at the eligibility stage in the higher-grade competition, was subsequently deemed by the Selection Board not to have professional experience sufficiently relevant for the competition in question.

24. In light of the above, the Ombudsman concludes that the provision in the Guide to Open Competitions which prohibits candidates from participating in parallel competitions, as is currently applied, is incompatible with EU law and good administrative practice.

25. The Ombudsman however acknowledges that EPSO's proposal to allow candidates that do not meet the CBT threshold in the AD 7 competition, but do meet the threshold in the AD 5 competition, to pass to the AD 5 competition, will constitute an improvement on the operation of the passerelle clause. Indeed, by staggering the examination of applications in parallel competitions, the Selection Board is able to re-assign those candidates who do not meet all the criteria for the higher-grade competition to the lower-grade competition. By establishing the threshold for admission to the Assessment Centre in the lower-grade competition, EPSO ensures that good candidates are not excluded from the competition at that stage.

26. However, the improved passerelle clause may still exclude better candidates from the reserve list in the lower grade competition. This would be the case where a candidate, who passed the CBT threshold and meets the professional experience requirement for the higher-grade competition (and who would not have opposed his or her re-assignment to the lower-grade competition), is admitted to the Assessment Centre and does not succeed in being placed on the reserve list. This candidate who has the same or better CBT result than the candidates who take part in the lower grade competition would be deprived of the possibility of being examined in the lower grade Assessment Centre and of sitting the different tests designed for that grade. By analogy with the judgment in Demeneix[14], that candidate's failure in the Assessment Centre for the higher grade does not necessarily imply that he or she would not do better in the Assessment Centre for the lower grade competition.

27. In light of this, the Ombudsman considers that EPSO proposals to revise its practice do not suffice to fully remedy the maladministration found. The Ombudsman, therefore, closes the case with a critical remark.

Conclusion

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

The provision in the Guide to Open Competitions which prohibits candidates from participating in parallel competitions, as it is currently applied, is incompatible with EU law and good administrative practice and thus constitutes maladministration. EPSO's proposal to revise its practice does not suffice to fully remedy this instance of maladministration.

The complainant and EPSO will be informed of this decision.

Emily O'Reilly

Strasbourg, 21/03/2016

 

[1] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's recommendation available at: http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/56464/html.bookmark

[2] Case F-99/08 Rita Di Prospero v Commission, 2009 FP-I-A-1-441; FP-II-A-1-2395.

[3] Di Prospero, cited above, paragraph 35.

[4] Di Prospero, cited above, paragraph 33.

[5] Di Prospero, cited above, paragraphs 43-52.

[6] Cited above.

[7] "candidates whose scores are below the threshold for the best scores for the AD 7 competition will not be considered for reassignment to the AD 5 competition"

[8] Described in paragraph 8 of this decision.

[9] Case F-96/12 Demeneix v Commission, paragraphs 50-66.

[10] In paragraph 31 of her recommendation, the Ombudsman stated:

"However, the positive effect of this possibility is limited. According to the Notice of Competitions ("candidates whose scores are below the threshold for the best scores for the AD 7 competition will not be considered for reassignment to the AD 5 competition"), the possibility for reassignment is not available to a candidate who meets the professional experience requirement for the AD7 competition but fails to meet the CBT threshold. That candidate will be excluded from the AD5 competition even if he is willing to be considered for it and meets the, possibly lower, CBT threshold for that competition. The effect of this restriction is that a candidate is excluded from a competition for which he meets all the requirements and has achieved the same test result as other candidates in that competition or an even better one. The possibility of reassignment, welcome and well-intended as it no doubt is, is therefore not sufficient to compensate for the negative effects of the general prohibition on taking part in parallel competitions."

[11] The Ombudsman's recommendation, cited above at footnote 1, paragraphs 25-36.

[12] In the Demeneix judgment, cited above, the CST reasoned as follows:

"61. En l’espèce, ainsi qu’il a été constaté au point 34 du présent arrêt, il résulte de la motivation de la décision attaquée que cette décision a été prise au motif que le réexamen des justificatifs fournis par le requérant relatifs à son expérience professionnelle n’avait pas permis au jury de vérifier que l’intéressé avait exercé effectivement des fonctions dans le domaine de l’audit avant août 2007. Après avoir rappelé que le réexamen n’avait pas permis de dégager d’éléments nouveaux par rapport à ceux qui lui avait été précédemment soumis, le jury a précisé sa motivation en estimant que les justificatifs ne consistaient qu’en des descriptions d’ordre général de fonctions dont rien au dossier ne permettait d’attester que le requérant les avaient effectivement exercées au cours de la période litigieuse, nonobstant la présence de la signature de sa hiérarchie sur le document transmis.

62. Une telle motivation, qui ressortit exclusivement à l’appréciation par le jury des conditions d’éligibilité propres au concours AD 7 relatives à l’expérience professionnelle du requérant, a été ainsi adoptée en exécution de la seule condition relative à l’expérience professionnelle définie au point 3, du titre 4, intitulé « A[udit] », de l’annexe à l’avis de concours, au regard de la nature des fonctions définies au point 1 de ce même titre 4, et non en exécution des dispositions du point 2 du titre I de l’avis de concours, dont le requérant a contesté la légalité par voie d’exception, lesquelles ne renvoient pas, au demeurant, audit titre et dont l’application ne saurait davantage être regardée comme étroitement liée à celle de ce même titre 4. Il appartenait au requérant, s’il s’en était cru recevable et fondé, soit de former un recours dans les délais prescrits contre l’avis de concours, et de se prévaloir alors de l’illégalité des dispositions du point 2 du titre I de cet avis, soit de solliciter en même temps que son inscription au concours AD 7, son inscription au concours AD 5, et d’attaquer le refus qui lui aurait été opposé le cas échéant par l’AIPN de faire droit à sa demande de pouvoir se présenter simultanément à ces deux concours, en excipant alors de l’illégalité des dispositions de l’avis en cause.

63. Toutefois, la décision attaquée fait également état de ce que l’examen des déclarations du candidat, avant l’invitation au centre d’évaluation, ne laissait pas présumer de façon évidente que le requérant ne remplissait pas les conditions relatives à l’expérience professionnelle attendues pour se présenter au concours AD 7, ce qui aurait pu, à ce stade, justifier une réaffectation sur le concours AD 5. La motivation de la décision attaquée précise également que l’avis de concours ne prévoit pas de possibilité de réaffectation après l’invitation au centre d’évaluation. Une telle motivation révèle les motifs qui ont conduit le jury à ne pas réaffecter le requérant sur le concours AD 5 avant comme après le déroulement des épreuves au centre d’évaluation. Elle présente ainsi un lien étroit avec les dispositions du point 2 du titre I dans la mesure où elles prévoient que la réaffectation entre les deux concours a lieu uniquement avant l’invitation au centre d’évaluation. Le moyen tiré de l’exception d’illégalité est donc, dans cette mesure, recevable.

64. À cet égard, il y a lieu d’observer, sur le fond, comme l’a soutenu à bon droit la Commission lors de l’audience, que la teneur des épreuves au centre d’évaluation est nécessairement fonction du grade auquel le candidat se présente, de telle sorte qu’il ne saurait être postulé, sans méconnaître le principe d’égalité de traitement, qu’un candidat ayant réussi les épreuves d’un concours tendant au recrutement de fonctionnaires d’un grade supérieur aurait nécessairement réussi les épreuves d’un autre concours tendant au recrutement de fonctionnaires d’un grade inférieur. Dans ces conditions, la réaffectation d’un concours sur un autre ne peut régulièrement avoir lieu qu’avant le déroulement des épreuves qui correspondent au concours sur lequel le candidat est réaffecté. L’administration n’a donc pas commis d’erreur de droit en considérant qu’un candidat qui a réussi les épreuves du concours AD 7 ne peut pas automatiquement être réaffecté sur le concours AD 5, alors même que ce concours correspondait à un grade inférieur, dans la mesure où un tel candidat n’a pas effectivement passé les épreuves propres au concours AD 5."

[13] Demeneix, paragraph 62.

[14] Cited above, paragraph 64.