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

The background to the complaint

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 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 this complaint with the European Ombudsman.

The inquiry

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.

4. In the course of the inquiry, the Ombudsman received the opinion of EPSO 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. The Ombudsman's draft recommendation takes into account the arguments and opinions put forward by the parties.

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

Arguments presented to the Ombudsman

5. In his complaint, the complainant pointed out that the 'Guide to Open Competitions', which applies to all recruitment procedures carried out by EPSO, provides the following ground for exclusion from a competition: "you have applied for competitions/fields/channels/options that are incompatible"[2]. The complainant argued that this prohibition is not in conformity with the judgment of the Civil Service Tribunal ('CST') in Di Prospero[3] or with the further remark made by the Ombudsman in the decision on complaint 2616/2005/(PB)SAB[4].

6. In its judgment in Di Prospero, which concerned the organisation of open competitions to recruit administrators and principal administrators in the field of fraud prevention[5], the CST found that the decision to prohibit candidates from applying for both competitions could not be justified by Article 27 of the Staff Regulations of officials of the European Union ('SR')[6].

7. In its opinion, EPSO stated that the meaning of the complainant's allegation was unclear. It added that it views the complaint as a means to provide the complainant with an explanation as to how it applies the Di Prospero ruling. In this regard, EPSO acknowledged that, in Di Prospero, the CST annulled EPSO's decision not to allow the applicant to apply for two "sister competitions". That ruling, however, had to be seen in light of the specific circumstances of that case. Indeed, that case concerned a 'specialist competition' for the European Antifraud Office ('OLAF') that was divided into two parts (for posts to be filled at grades AD8 and AD11 respectively)[7]. The applicant in that case clearly had sufficient professional experience to be eligible for the AD8 competition but it was uncertain whether she also fulfilled the requirements regarding professional experience which would render her eligible for the AD11 competition. In EPSO's view, the Di Prospero ruling could not be understood as meaning that clauses limiting the registration of candidates for a competition would always be contrary to Article 27 SR[8]. However, in order for it to be lawful, such a restriction would have to comply with the dual requirement of being compatible with the objective of Article 27 SR and with the interests of the service[9]. Because of the narrowly defined field of the competition, implying a very small number of candidates, and the fact that the verbal and numerical reasoning tests for both competitions were the same, the CST considered that the interests of the service adduced by the Commission did not outweigh the interests of those few candidates whose professional experience came close to that required by the AD11 competition[10].

8. In any event, EPSO noted that the Di Prospero judgment relates to selection procedures before 2010. ESPO stated that "the complainant has not advanced a single argument demonstrating that there is no interest of the service to interdict parallel application in different branches of annual competition cycles". Given the vagueness of the allegation, EPSO contended that it could not comment further on why it considers a specific restriction clause to be in line with Article 27 SR and the Di Prospero ruling. In general terms, EPSO argued that it applied a restriction clause in cases where it considered that clause to be in line with the dual requirement explained in Di Prospero.

9. Moreover, EPSO pointed out that the Ombudsman recognised that, under certain conditions, a restriction clause is possible and that, at the hearing of the Niestroy case, which concerned a clause prohibiting multiple applications for parallel competitions covering different fields, the President of the General Court of the European Union made it clear that the clause in the notice of competition requiring candidates to choose one competition of the cycle, was justified by the interests of the service.

10. EPSO also submitted that the Ombudsman's further remark in the decision on complaint 2616/2005/(PB)SAB was no longer relevant to the current format of open competitions because it is nearly impossible for the Computer-based Tests ('CBTs') for the different competitions to be held simultaneously. EPSO stressed that, since Di Prospero, the possibility of simultaneous testing has not been an underlying reason for introducing a restriction clause in a notice of competition.

11. Next, EPSO argued that, when introducing paragraph 2.1.4 of the Guide to Open Competitions[11], it did not intend to exclude certain candidates but rather to oblige them to make a choice which would allow them better to evaluate whether or not they should apply for one competition rather than another, whilst trying to ensure a more efficient management of the procedure. EPSO argued that there was no reference to parallel competitions in this paragraph, but only to competitions/fields/channels/options that are incompatible.

12. In his observations, the complainant insisted that his allegation was clear and in fact concerned paragraph 2.1.4 of the EPSO Guide to Open Competitions. In the complainant's view, it was questionable whether there is any difference between 'parallel competitions' and 'competitions that are incompatible'.

13. In order to illustrate his concerns, the complainant referred to the Open Competitions for Administrators carried out in 2012[12]. A candidate could apply for only one of the following fields: European Public Administration (EPA), Law, Audit, Communication, External Relations[13]. The complainant stated that this prohibition ran counter to Article 27 SR because it did not allow the institutions to recruit the best candidates. He gave the following example: a candidate wants to apply for both Audit and EPA but, because of the restriction, he chooses EPA. He takes the CBT and scores 60 points. If the pass mark for EPA is 61 points and the pass mark for Audit is 57 points, a candidate who opted for the Audit field and obtains a lower score than him will be admitted to the next stage. It follows that this restriction clearly prevents EPSO from recruiting the best candidates.

14. Regarding EPSO's argument that Di Prospero has to be seen in light of the specific circumstances of that case, the complainant observed that the judgment is composed of a general part and a specific part. The general part considers Article 27(1) SR and the case-law concerning the institution's discretion in organising competitions and the interests of the service. In that part, the CST stated that "considerations of a purely practical nature deriving from the practical difficulties of organizing and conducting competitions do not come within the interests of the service. ... It follows that, for it to be lawful, any clause for admission to a competition must comply with a dual requirement, first, that the clause be justified by requirements connected with the post to be filled and, more generally, by the interests of the service and, second, that it comply with the objective of the first paragraph of Article 27 of the Staff Regulations. Although, most frequently, those two parts of the dual requirement largely overlap, they are none the less distinct concepts"[14].  On this basis, the complainant argued that EPSO failed to put forward any reason justified by the interests of the service to prohibit candidates from applying for parallel competitions.

15. In response to EPSO's position that he did not advance any argument demonstrating that prohibiting candidates from applying for parallel competitions went against the interests of the service, the complainant submitted that it was for the administration to give reasons for any decision it takes.

16. Concerning EPSO's argument that a restriction would be justified by the need to ensure a "more efficient management of the procedure", the complainant argued that this was precisely the kind of consideration that the CST rejected in Di Prospero.

17. Finally, the complainant argued that EPSO's reference to the Niestroy case was not relevant because the applicant in that case had withdrawn her application and no judgment had thus ever been rendered on this application. Besides, the case-law of the Court may evolve and, in this case, it actually has evolved in the sense of the Di Prospero ruling of 17 November 2009.

18. Having analysed the above arguments, the Ombudsman asked EPSO to address the following questions:

(1) Does the requirement that candidates in Open Competitions EPSO/AD/230/12 (AD 5) and EPSO/AD/231/12 (AD 7) "apply for only one competition and only one field" mean that EPSO considers that (i) the said competitions and (ii) the fields they covered were considered to be "competitions/fields/channels/options that are incompatible", within the meaning of the EPSO Guide to Open Competitions?

(2) Having regard to the relevant case-law of the EU courts, notably the Di Prospero judgment, on what grounds does EPSO consider it justified to require candidates in Open Competitions EPSO/AD/230/12 (AD 5) and EPSO/AD/231/12 (AD 7) to "apply for only one competition and only one field"?

(3) On a more general level, and if the answer to the first question is in the affirmative, could EPSO provide information on whether it applies the same approach in any other competitions and, if so, explain why it considers doing so justified in light of the relevant case-law of the EU courts?

19. In its reply, EPSO confirmed, as regards the first question, that, indeed, the two open competitions mentioned above were considered incompatible. EPSO also confirmed that within the same competition, the different fields were considered incompatible as well.

20. Regarding the second question, EPSO noted that the only difference between competitions EPSO/AD/230/12 (AD5) and EPSO/AD/231/12 (AD7) was the level of experience required and therefore the level of entry into service. Candidates who met the admission requirements of the AD5 competition only could not claim any interest in applying for the AD7 competition, as their application would be rejected for failing to meet the eligibility requirements. On the other hand, candidates eligible for the AD7 competition, by definition, also fulfilled the requirements for the AD5 competition. EPSO argued that it was in the interests of the service to steer highly qualified candidates with extensive professional experience first to the AD7 competition, without depriving them of the opportunity to compete at the AD5 level should they not meet the professional experience requirement for the AD7 competition.

21. In order to avoid a situation where candidates who had doubts as to the relevance or the length of their professional experience would miss the opportunity to apply for the other competition, the relevant notice of competition concerning the AD7 competition provided for the possibility of reassigning candidates to the AD5 competition[15]. This was necessary in order to finalise the selection procedure in a timely manner (which would prove impossible if the tests could not be conducted in parallel) and improve the comparability among candidates. Candidates were informed about this possibility before applying and could decide whether to give their consent to this reassignment while filling in their online application. It followed that there was no absolute prohibition on candidates applying for the two parallel competitions. Instead, the possibility of reassignment made the restriction compatible with the interests of the service and Article 27 SR, as well as the interests of candidates.

22. Regarding the third question, EPSO informed the Ombudsman that it applies the same approach to other parallel competitions if it considers that the requirements of Di Prospero are satisfied.

23. In his further observations, the complainant took the view that EPSO had not demonstrated that the prohibition on taking part in parallel competitions complies with either Article 27 SR or the interests of the service. Specifically, the complainant noted that a candidate who fulfilled the requirements of the AD7 competition would still be interested in participating in the AD5 competition, notably in the event that he or she did not succeed in the AD7 competition. In such a case, EPSO would prohibit an excellent candidate from taking part in the AD5 competition, thus calling into question its duty to recruit officials of the highest standard of ability. Contrary to EPSO's arguments, this cannot be in the interests of the service, either.

The Ombudsman's assessment leading to a draft recommendation

24. This complaint concerns EPSO's practice of prohibiting candidates from taking part in parallel competitions. It is true that no such prohibition is 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, EPSO has confirmed, in reply to a question put to it by the Ombudsman, that it considers parallel competitions to be incompatible with each other.  It is thus clear that EPSO does indeed prohibit candidates from taking part in parallel competitions, subject to an exception that will be discussed below. In the course of this inquiry, the complainant also commented on the fact that EPSO also prohibits candidates from opting for more than one field where a competition covers several fields of activity. However, the complainant did not submit any allegations or claims in so far as this further issue is concerned. The Ombudsman will therefore limit her analysis to the prohibition on taking part in parallel competitions.

25. This prohibition needs to be examined with regard to the applicable law and the principles of good administration. The relevant legal provision is Article 27 SR, as interpreted by the CST in Di Prospero. While it is true that EPSO invoked other cases in support of its views, these are not relevant for the Ombudsman's assessment. As the complainant observed, the Ombudsman has already had to deal with a complaint concerning the issue of parallel competitions (complaint 2616/2005/(PB)SAB). In the decision closing that inquiry, which was made in 2006, the Ombudsman took the view that EPSO could prohibit candidates from applying for more than one parallel competition only when it was certain that the tests would indeed be held simultaneously. However, important changes have occurred since then. First, EPSO now uses Computer-based Tests during the initial stage of competitions. Given the way these tests are organised, the risk that the relevant tests of one competition would fall on the same day as those of a parallel competition no longer exists. Second, in its judgment in Di Prospero, the CST made it clear that considerations relating to the sound and timely management and organisation of competitions cannot be invoked as legitimate grounds for prohibiting candidates from participating in parallel competitions. In light of these changes, the Ombudsman's analysis focuses on the Di Prospero judgment.

26. In that judgment, the CST 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) SR, that is, to recruit "officials of the highest standard of ability, efficiency and integrity"[16]. 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[17].

27. It is clear from the judgment in Di Prospero that the CST considers that the above-mentioned dual requirement applies to each and every open competition organised by EPSO. The Ombudsman therefore finds that EPSO's argument that the CST's pronouncements are limited to the specific facts of the case before the tribunal is not convincing.

28. In the Di Prospero case, the European Commission (which represents EPSO before the EU courts) submitted several arguments in support of its view that the prohibition on taking part in parallel competitions was justified[18]. According to the Commission, this prohibition made it possible:

• to accelerate the selection procedure and recruitment;
• to promote competition between like candidates within the group of candidates registered for each of the competitions;
• to avoid the overlapping of candidates who succeed in more than one of the competitions at issue;
• to avoid the risks linked to test date clashes should the tests for different competitions take place on the same day;
• to ensure equal opportunities for candidates, in that some of them are able to take several days' leave more easily and thus can sit all the competitions while others who find this more difficult would have to choose between the competitions;
• to avoid the extra expense of hiring premises and purchasing equipment, as well as the expenses linked to the costs of the questions.

The CST rejected all the above arguments. It provided detailed reasons for its view, and concluded that prohibiting candidates from applying for both of the parallel competitions at issue was not in the interests of the service[19]. It should be noted that the Commission did not appeal against this judgment.

29. In the present case, EPSO argued that applicants who meet the eligibility conditions for an AD5 competition only do not have an interest in applying for an AD7 competition. As regards the reverse situation, those who meet the professional experience conditions for the AD7 competition also satisfy the conditions for the AD5 competition. EPSO acknowledged that preventing these candidates altogether from taking part in the AD5 competition could indeed result in the best candidates being excluded from the competition. However, this issue was addressed by Point I.2 of the Notice of Competitions, which provides that those candidates who take the CBT and meet the AD7 threshold but do not have the professional experience required for this competition, may be reassigned to the AD5 competition, if they so wish[20]. Therefore, EPSO argued that there is no absolute prohibition on candidates taking part in parallel competitions.

30. The Ombudsman considers that the above-mentioned possibility does indeed mitigate the negative effects of the prohibition on taking part in parallel competitions.

31. 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.

32. EPSO also submitted that the prohibition in question is justified because 1) the same candidate cannot appear twice on the reserve list, 2) the selection procedure may thus be finalised in a timely manner, and 3) the comparability among candidates may be improved. Moreover, EPSO argued that 4) "the complainant has not advanced a single argument demonstrating that there is no interest of the service to interdict parallel application in different branches of annual competition cycles", which could be interpreted as suggesting that the relevant prohibition is acceptable on the grounds that a candidate can apply for a different competition the following year.

33. The Ombudsman takes the view that these are considerations of a purely practical nature which, as the CST ruled in Di Prospero, do not come within the interests of the service and should therefore be rejected.

34. It should be added that arguments similar to 1)-3) above had already been put forward by the Commission in Di Prospero and were rejected by the CST (see paragraph 28 above). Specifically, concerning argument 1), the CST ruled in Di Prospero that the possibility that candidates might succeed in more than one competition existed in any event and that the prohibition applied by EPSO was incompatible with the objectives laid down in Article 27(1) SR and did not appear to be proportionate[21]. Likewise, concerning argument 2), the CST ruled that EPSO could not rely on the need to accelerate the selection and recruitment procedures to exclude certain candidates[22]. Concerning argument 3), the CST reasoned that the fact that the candidates' profiles may lack similarity or comparability in no way constitutes a circumstance preventing the competition from being conducted in accordance with its objective[23].

35. Concerning argument 4), the assumption that, because of the annual cycles of competitions, candidates may apply for a different competition in a subsequent year does not change the fact that they are precluded from applying for parallel competitions within the same cycle.

36. In light of the foregoing considerations, the Ombudsman concludes that EPSO did not establish that prohibiting candidates from participating in parallel competitions is compatible with EU law and good administrative practice. This constitutes an instance of maladministration. The Ombudsman therefore makes a corresponding draft recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.

The draft recommendation

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

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

EPSO and the complainant will be informed of this draft recommendation.  In accordance with Article 3(6) of the Statute of the European Ombudsman, EPSO shall send a detailed opinion by 31 December 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 24 September 2014