Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. The present case concerns a recruitment procedure for a project co-financed by the European Commission.

2. In 2013, the complainant applied for a post as a trainer in a project carried out by the Organisation for Security and Cooperation in Europe ('OSCE') in the Balkans. The Commission funded 90% of the project, which aimed at promoting the integration of Roma people.

3. Subsequently, she was informed that her application had been unsuccessful. In this respect, the OSCE indicated that it preferred to select local trainers and "with more face-to-face interaction" than what the complainant could offer. The OSCE added that recruiting local trainers led to a reduction of costs.

4. She then wrote to the Commission indicating, inter alia, that her exclusion from the selection process amounted to discrimination on the grounds of nationality.

5. In its reply, the Commission explained that her application was rejected because other candidates had more relevant experience. The fact that they also had native language skills was an additional positive element.

6. In view of this, the complainant wrote again to the Commission arguing, inter alia, that the language requirements were contrary to EU law insofar as the OSCE sought to recruit only native speakers.

7. In its reply, the Commission invited the complainant to first raise her grievance with the project's 'implementing authority' (i.e., the OSCE).

8. The OSCE replied to the complainant acknowledging that the call for expression of interest did not indicate sufficiently clearly that the trainer's post was intended to be filled by local candidates. The OSCE apologised for this mistake and indicated that it had taken measures to correct this in future calls for expression of interest.

9. It emerged from documents provided by the complainant that a subsequent call for expression of interest for trainers for a similar project published by the OSCE required explicitly, inter alia, that candidates (i) must be nationals of one of the countries where this project would take place (i.e., Albania, Bosnia and Herzegovina, Croatia,[2] the former Yugoslav Republic of Macedonia, Kosovo, Montenegro and Serbia) and (ii) must have native language skills.

10. The complainant then informed the Commission that she had already raised her grievances with the OSCE, and reiterated that she was discriminated against on the grounds of nationality.

11. The Commission replied stating that its partners have to adhere to the founding principles of the EU, including the principle of non-discrimination. It added that its experience working with the OSCE has so far been very satisfactory. As regards the recruitment procedure in which the complainant took part, it appeared that there was an unfortunate oversight on the part of the OSCE since the call for expression of interest did not clearly state that the trainer's post was intended for local candidates only.

12. Having received this reply, the complainant wrote to the Commission reiterating her arguments that accepting applications from "local candidates only" and imposing native language requirements was contrary to the principle of non-discrimination on the grounds of nationality.

13. Subsequently, the Commission rejected the argument that the complainant had been discriminated against on grounds of nationality.

14. In view of this, the complainant lodged the present complaint with the Ombudsman.

The inquiry

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

Allegation:

The Commission failed to ensure respect for the principle of non-discrimination on the grounds of nationality in a recruitment procedure for a project co-financed by it.

Claim:

The Commission should ensure that the principle of non-discrimination on the grounds of nationality is respected in recruitment procedures for projects co-financed by it.

16. In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's opinion.

Allegation of breach of the principle of non-discrimination on the grounds of nationality and related claim

Arguments presented to the Ombudsman

17. In her complaint, the complainant argued that the principle of non-discrimination was breached by the requirement that applicants had to be (i) native speakers of one of the local languages and/or (ii) nationals of one of the countries where the project was to be carried out.

18. In its opinion, the Commission noted at the outset that when it selects international partners to implement its objectives, potential partners must prove their commitment to adhere to the fundamental principles of the EU. In this respect, it further noted that the prohibition of discrimination on any ground is one of the fundamental rights protected by the Charter of Fundamental Rights of the EU (Article 21). Moreover, the Commission indicated that its experience working with the OSCE has been very positive so far.

19. As regards the fact that the vacancy notice did not explicitly require that candidates had to be (i) native speakers, the Commission noted that the vacancy notice required "excellent oral communication and drafting skills" in the relevant languages.[3] Thus, non-native speakers were allowed to apply. However, the complainant failed to show the required level of knowledge in the relevant languages. Thus, it was not the lack of native language skills but her insufficient language skills in the relevant language that led to the rejection of her application. The fact that other applicants were native speakers was considered as an additional positive factor, although not the determining one.

20. In relation to the issue of (ii) nationality, the Commission indicated that nationality was neither explicitly indicated as a criterion in the vacancy notice nor taken into account during the selection process. Moreover, while the OSCE wished to raise the "local knowledge and capacity", this did not necessarily imply that applicants had to reside (or continue to reside) in one of the relevant countries in order to be selected.

21. Finally, the Commission indicated that, having consulted with the OSCE, it reached the conclusion that the reason why the complainant's application was not selected was because she did not have the necessary language skills and the required experience. In particular, as regards the complainant's experience, the Commission indicated that the 'implementing authority' was looking for a trainer with practical experience, rather than a university professor. Moreover, the complainant did not have the required minimum of 5 years of professional experience. The Commission added that, out of the 27 applications received, the seven shortlisted applicants had proven experience in conducting similar training in the region.

22. In her observations, the complainant pointed out that the Commission overlooked the fact that, on several occasions, the Commission and the OSCE indicated that the latter was actually seeking to recruit local candidates only. In particular, the complainant referred to the following: on 11 March 2013, the OSCE indicated that it "would like to engage trainers from the region"; in a letter of 17 May 2013, the OSCE indicated that "the positions sought were local"; moreover, on 9 July 2013, the Commission informed the complainant that the OSCE was seeking "local applicants only".

23. In conclusion, the complainant took the view that it was clear that her application was rejected because she was not a local candidate. In such circumstances, the Commission should have tried to explain the reasons why, in its view, this choice was justified, rather than questioning her qualifications.

24. Moreover, the complainant noted in passing that, eventually, the training for which she applied was not carried out.

The Ombudsman's assessment leading to a draft recommendation

25. The Ombudsman notes that the prohibition of discrimination on the grounds of nationality is one of the cornerstones of the European Union. This principle is enshrined in Article 18 of the Treaty on the Functioning of the EU ('TFEU') and Article 21 of the Charter of Fundamental Rights of the EU (the 'Charter'). Moreover, the importance of this principle has been emphasised in the case-law of the EU Courts.[4]

26. Furthermore, the Court has ruled that the prohibition of discrimination on grounds of nationality also covers forms of indirect or disguised discrimination which, by the application of other criteria, lead in fact to the same result.[5] For instance, requirements concerning the place of residence or language skills can amount to a form of indirect discrimination on grounds of nationality since those requirements can be more easily satisfied by nationals than by non-nationals.

27. On the other hand, it should be noted that the prohibition of discrimination on grounds of nationality does not prevent the adoption of requirements which may place non-nationals at a disadvantage, provided that the objective pursued is legitimate and the requirements are proportionate.[6]

28. As regards the case at hand, it is not disputed that the call for expression of interest did not explicitly include requirements that could arguably lead directly (e.g., nationality requirements) or indirectly (e.g., native language skills, residence requirements) to discrimination on the grounds of nationality. However, by reference to a number of letters and emails exchanged with the Commission and the OSCE (see points 3, 8 and 11 above), the complainant has argued that such requirements were actually applied in practice. In its opinion, the Commission rejected that contention and argued instead that the complainant's application was unsuccessful simply because she did not meet the language requirements and lacked the required minimum experience unlike other candidates.

29. The Ombudsman notes that, as the Commission has pointed out, the applicant did not indicate in her application that she had "excellent" skills in one of the regional languages, but stated instead that she had a "good working knowledge". Moreover, the Commission explained that other applicants had a more suitable profile for the post.

30. However, it clearly emerges from the evidence submitted to the Ombudsman that the post in question was in reality intended for "local applicants" only. In fact, in its letter of 6 September 2013, the Commission itself indicated to the complainant that this "oversight" had been solved and that future calls for expression of interest would indicate clearly which nationals could apply. As the complainant pointed out, subsequent similar calls for expression of interest did indeed indicate that candidates (i) must be nationals of one of the countries where the project would take place and (ii) must have native language skills. In view of the above, the Ombudsman concludes that the Commission failed properly to address the complainant's allegation that there had been discrimination on the grounds of nationality.

31. As indicated in points 25-27 above, in certain circumstances, imposing requirements concerning language, residence or other requirements, may be justified and will thus not lead to direct or indirect discrimination on the grounds of nationality. However, the Commission has not shown that this was the case here. In any event, the Commission would, in such a case, have to ensure that the justification for the relevant requirements is explicitly set out in the call for expression of interest. In the present case, the Commission has failed to do so.

32. Given that, as the complainant mentioned, the project for which she applied was eventually not carried out, there is no need for action as regards this project. However, in view of the positions adopted by the OSCE and the Commission, it seems highly likely that the issue raised by the complainant will also affect future projects by the OSCE that are co-financed by the EU. Therefore, the Ombudsman will make a draft recommendation concerning the systemic aspect of this case in accordance with Article 3(6) of the Statute of the European Ombudsman.

The draft recommendation

On the basis of her inquiry into this complaint, the Ombudsman makes the following draft recommendation to the Commission:

The Commission should ensure respect for the principle of non-discrimination on the grounds of nationality in selection procedures concerning projects that it co-finances. In particular, the Commission should ensure that, in future calls for expression of interest, requirements concerning language skills, residence or other similar requirements are made explicit, that these requirements are necessary to achieve a legitimate objective and proportionate to that objective, and that the justification is set out in the call for expression of interest.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 31 August 2014. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

Emily O'Reilly

Done in Strasbourg on 4 June 2014

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] The closing date of the call for expression of interest was 15 June 2013 and therefore predated the accession of Croatia to the EU.

[3] Bosnian/Croatian/Montenegrin/Serbian or Albanian/Macedonian and English.

[4] See, for instance, Case C-281/98 Angonese v Casa di Risparmio di Bolzano [2000] ECR I-4139, concerning discrimination on the grounds of nationality due to language requirements.

[5] See Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11.

[6] As an example, see, for instance, Case C-379/87 Groener v Minister for Education and the City of Dublin Vocational Educational Committee [1989] ECR I-3967.