The background to the complaint

1. This case concerns a recruitment procedure conducted by the European Parliament ('Parliament') for the creation of a House of European History in Brussels.

2. On 15 and 18 March 2010, the European Parliament sent to the Permanent Representations of the Member States of the EU and to the Network of European Museum Organisations ('NEMO') a call for expression of interest for the recruitment of temporary and contract staff for the House of European History. For this project, Parliament sought to recruit a temporary agent to fill the position of director of the House of European History (AD 12 post) and 13 contract agents to fulfil auxiliary tasks. The deadline to submit applications was 23 April 2010.

3. The complainant, who was an employee of a Greek museum, became aware of the call for expression of interest on 25 April 2010. She submitted her application for one of the positions as contract agent on the same date. However, Parliament refused to consider her application since it had been submitted after the deadline expired.

4. On 29 April 2010, the complainant lodged the present complaint with the Ombudsman. She provided additional information on 30 April, 3 May and 6 May 2010.

5. On 14 June 2010, Parliament informed the complainant that it had decided to extend the deadline for the submission of applications concerning the AD 12 post until 9 July 2010. However, this extension did not concern the 13 posts as contract agents.

The subject matter of the inquiry

6. By letters of 4 June and 7 July 2010, the Ombudsman opened an inquiry into the following allegations and claim:

Allegations:

(1) Parliament failed to ensure adequate publicity for the vacancies for the House of European History.

(2) The time frame between the publication of the vacancies and the deadline for applications was too short.

(3) Parliament failed to specify the required professional experience for the AD 12 post.

(4) Parliament failed (i) to specify whether the responsibility for examining the merits of applications lies exclusively with the Selection Board or whether the Selection Board will only assess candidates shortlisted by Parliament, and (ii) to explain the methods that will be used for the assessment of candidates, such as interviews or written tests.

(5) Parliament's selection procedure did not comply with the procedures to which it had publicly committed itself (i) since it was not carried out by the European Personnel Selection Office ('EPSO') and (ii) since the vacancy for the AD 12 post was not published in the Official Journal.

(6) Parliament omitted to include the call for expression of interest and/or the relevant job descriptions, the requirements on qualifications and experience in the agenda of the Board of Trustees of the House of European History.

Claim:

Parliament should cancel the recruitment procedure and re-advertise it in accordance with the Conditions for Employment of Other Servants and the Code of Good Administrative Behaviour.

7. The complainant also alleged that the recruitment procedure was contrary to a motion by the Legal Affairs Committee for a Parliament resolution. However, since Parliament's plenary had not yet considered this motion at that stage, the Ombudsman decided not to include this allegation in his inquiry because Parliament could not be bound by a motion of the said committee.

The inquiry

8. Parliament provided its opinion on 21 September 2010. On 4 November 2010, the Ombudsman asked Parliament to provide further information, which was provided on 3 February 2011. Parliament's opinion and its reply to the request for further information were forwarded to the complainant for her observations, which were provided on 16 February 2011.

9. On 6 September 2011, the Ombudsman's services inspected Parliament's file. A copy of the inspection report was sent to the complainant for her observations. However, the complainant did not submit any observations on the inspection report.

The Ombudsman's analysis and conclusions

Preliminary remarks

10. As a preliminary matter, Parliament expressed doubts concerning the complainant's "locus standi" to lodge the present complaint with the Ombudsman because most of her allegations concerned the AD 12 temporary post. Parliament noted that the complainant could have applied for this position but decided not to do so. In contrast, the complainant applied for, and was interested in, the posts as contract agent. For this reason, Parliament appeared to question the admissibility of her complaint as far as the AD 12 post was concerned.

11. The Ombudsman notes that neither the Treaty on the Functioning of the European Union ('TFEU') nor the Statute of the Ombudsman establish as a condition for the admissibility of complaints that the complainant should be directly concerned by the instance of alleged maladministration. For this reason, in accordance with the Ombudsman's well-established practice, it is not necessary for complainants to demonstrate that they have a direct interest in order to be entitled to lodge a complaint with the Ombudsman.[1] Therefore, irrespective of whether the complainant had a direct interest in the AD 12 post and was directly concerned by the alleged maladministration, she was entitled to submit a complaint concerning this issue to the Ombudsman.

A. Allegation of inadequate publicity for the vacancies for the House of European History

Arguments presented to the Ombudsman

12. In her complaint, the complainant argued that the inadequate publicity given to the vacancies for the House of European History prevented her from becoming aware of them before the expiry of the deadline to submit applications. The complainant considered that the use of NEMO and the Permanent Representations of the Member States of the EU to ensure publicity was inadequate. In particular, the complainant indicated that NEMO was not a network of museums but a network of associations of national museums. Therefore, in the complainant's view, members of NEMO (i.e., associations of national museums) had to publicise the vacancies by informing their members (i.e., national museums). According to the complainant, this led to inadequate publicity in Greece since there is no association of national museums in Greece. In contrast, other countries were put at an advantage (for instance, the complainant noted that the German Museums Association was a direct recipient of the letter addressed to NEMO).

13. Furthermore, the complainant argued that the vacancies should have been published in the Official Journal of the EU and/or on EPSO's website.

14. Parliament argued that neither the Staff Regulations, nor the Conditions of Employment of Other Civil Servants ('CEOS'), nor Parliament's internal rules governing the recruitment of officials contain any specific provisions concerning the advertising of posts for temporary agents or contract agents. Thus, Parliament indicated that it is not obliged to publish such vacancies in the Official Journal of the EU. Moreover, it held that it is not obliged to seek EPSO's assistance.

15. Parliament noted that it enjoys a broad margin of discretion to choose the means that it deems most appropriate to publicise vacancies. It added that, in view of the very specific profiles sought, it decided not to seek assistance from EPSO and instead decided to use the Permanent Representations and NEMO in order to publicise the vacancies in the appropriate national institutions and bodies. In Parliament's view, the fact that a significant number of people (including in particular Greek citizens) applied for the vacancies indicated that the publicity was not inadequate.

16. As regards the use of the same means of publicity (i.e., NEMO and the Permanent Representations) when it decided to extend the deadline for applications to the AD 12 post, Parliament suggested that the use of such channels had proven to be appropriate in order to find suitable candidates for the 13 posts as contract agents. In view of this, Parliament considered that it had no reason to use other means of publicity.

17. Therefore, Parliament concluded that it ensured adequate publicity for the vacancies for the House of European History.

18. In her observations, the complainant insisted that the vacancies were not given adequate publicity.

The Ombudsman's assessment

19. The Ombudsman notes that, according to well-established case-law, the EU institutions enjoy a wide margin of discretion as regards the organisation and the conduct of recruitment procedures.[2] Therefore, the review exercised by the EU courts and by the Ombudsman must be limited to establishing whether the institution concerned acted within reasonable limits and did not exercise its discretionary powers in a manifestly erroneous manner.[3]

20. In the Ombudsman's view, Parliament's wide margin of discretion entitles it, inter alia, to determine the means that it deems most appropriate to publicise vacancies for temporary agents and contract agents. This conclusion stems from the fact that neither the CEOS nor Parliament's internal rules impose the use of specific means of publicity, such as publication in the Official Journal, on Parliament's website or through EPSO.

21. In the present case, Parliament decided to inform potential candidates by sending the relevant information to NEMO and the Permanent Representations of the Member states in Brussels.

22. In so far as NEMO is concerned, the complainant raised two specific objections.

23. First, the complainant suggested that using NEMO in order to inform potential candidates granted potential candidates established in Germany an unfair advantage, since the German Museums Association was a direct recipient of the letter addressed to NEMO. The Ombudsman notes, however, that the fact that the German Museums Association and, through it, candidates established in Germany may have received the relevant information more rapidly than others would have been likely to be due to the fact that NEMO has its headquarters at the premises of the German Museums Association.[4] The Ombudsman therefore considers the complainant's objection to the use of NEMO is unfounded.

24. Second, the complainant argued that there was no association of museums in Greece and that it was therefore difficult to see how candidates based in Greece could receive information on the vacancies. In this context, it should be noted that, in its letter to NEMO, Parliament requested the latter to inform the "museums" forming part of its network of the relevant vacancies. The complainant's argument is therefore not convincing.

25. In the Ombudsman's view, Parliament did therefore not exceed the margin of its discretion by turning to NEMO in order to inform potential candidates, on condition that NEMO did indeed pass on this information. However, regard needs to be had to the fact that NEMO does not appear to have been under a legal obligation to cooperate with Parliament. It should further be noted that Parliament did not establish that NEMO complied with its request. In the absence of such evidence, asking NEMO to pass on the relevant information could hardly be considered sufficient as regards Parliament's duty to inform potential candidates of the vacancies to be filled.

26. However, Parliament did not rely solely on NEMO in this context but also called on the Permanent Representations of the Member States in Brussels to pass on the information. In this context, it should be recalled that, pursuant to Article 4(3) of the Treaty on European Union, Member States have a duty loyally to cooperate with the EU institutions. More specifically, Member States shall take any appropriate measure to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union and, in addition to that, facilitate the achievement of the Union’s tasks.

27. In view of the foregoing, the Ombudsman considers that Parliament did not exceed the margin of its discretion when calling on NEMO and the Permanent Representations in order to inform potential candidates of the vacancies to be filled. Therefore, the first allegation should be considered as unfounded.

28. Although Parliament had no legal obligation to publish the vacancies on its website, the Ombudsman would consider it highly desirable if Parliament could consider advertising such vacancies also on its website in the future. In reaching this conclusion, the Ombudsman also takes into account the considerations expressed in section E below. In view of the foregoing, the Ombudsman will make a further remark in this regard.

B. Allegation of insufficient time between the publication of the vacancies and the deadline for applications

Arguments presented to the Ombudsman

29. The complainant argued that the period of time allowed by Parliament to submit applications (i.e., at most five weeks and a half) was insufficient in view of the means used to publicise the vacancies. In the complainant's view, this was due to the fact that NEMO and the Permanent Representations would have to forward the calls for expression of interest to the relevant national institutions and bodies. Moreover, the complainant noted that the period in question included the Easter holiday.

30. Parliament noted that the CEOS do not establish any specific period of time for applicants to submit their applications. Moreover, Parliament considered that a period of five weeks and a half was sufficient for potential applicants to take notice of the calls for expression of interest. In Parliament's view, this reflected a fair balance between the interest of Parliament to fill the posts quickly and the interests of potential applicants. Furthermore, Parliament indicated that this period of time was not unusual. Finally, as indicated above, Parliament argued that the fact that 266 people (including 54 Greek citizens) applied for the position in which the complainant was interested demonstrated that the time allowed was not insufficient.

31. In her observations, the complainant argued that the fact that 54 Greek citizens applied for the position in question did not imply that the time allowed was sufficient. The complainant indicated that she had been informed that the assistant of a Member of the European Parliament ('MEP') forwarded the calls for expression of interest to a number of relevant Greek institutions (e.g., museums). She suggested that this could explain the significant number of applications by Greek citizens.

The Ombudsman's assessment

32. As indicated above, pursuant to well-established case-law, the EU institutions enjoy a wide margin of discretion as regards the organisation and the conduct of recruitment procedures.[5] The Ombudsman's review concerns the question whether there was maladministration in the way that Parliament exercised its discretionary powers.

33. As a starting point, Parliament correctly noted that the applicable rules do not establish any specific period of time for applicants to submit their applications.

34. In its opinion, Parliament submitted that the period of time allowed to candidates to submit an application was five weeks and a half. However, Parliament also indicated that its letters to the Permanent Representations and NEMO were sent by e-mail and that these e-mails were sent on 18 and 19 March 2010 respectively. Given that the deadline for applications was 23 April 2010 at noon, candidates thus effectively had a maximum period of little more than five weeks to manifest themselves.

35. As such, a period of time of five weeks does not seem unusually short if compared to other recruitment procedures conducted by the EU institutions. On the contrary, this period of time seems to be in line with that generally allowed in other recruitment procedures. In this context, it should in particular be noted that the Staff Regulations for officials of the European Union stipulate that a notice of open competitions must be published at least one month before the deadline to submit applications.[6]

36. It should be recalled, however, that the time that was available for submitting applications depended on how quickly NEMO and the Permanent Representations forwarded the information they had received from Parliament to potentially interested candidates. This was likely to have the consequence of shortening the period of time effectively allowed for candidates to submit their applications, in particular since Parliament does not appear to have requested the Permanent Representations and NEMO to deal with the matter urgently. In its opinion, Parliament did not provide any information on when exactly the relevant information reached potential candidates. The fact that Parliament in the end considered it necessary to extend the deadline for the AD 12 post in view of the fact that no suitable candidates had manifested themselves by the expiry of the original deadline lends some support to the complainant's argument that the time available to candidates was insufficient.

37. It should also be considered that the period between the dates on which Parliament turned to NEMO and the Permanent Representations and the deadline for applications covered the Easter period.

38. The Ombudsman acknowledges that there may be cases where it is necessary to act quickly so as to fill in the relevant posts as rapidly as possible. However, Parliament limited itself to stating that it was considered appropriate to fill the relevant positions as rapidly as possible. This statement is not sufficient to establish that there was indeed a need to act rapidly. It may in this context also be useful to note that the letters to NEMO and the Permanent Representations appear to have been sent out by e-mail only several days after they had been signed and that these letters do not draw their addressees' attention to a possible urgency.

39. The above considerations raise doubts as to whether the period available to candidates was indeed adequate. However, regard also needs to be had to the fact that Parliament received a considerable number of applications by the deadline it had set, including a significant number of applications from Greece. Even though the complainant has argued that the number of applications from Greece may also be due to information made available to potential candidates by the assistant of a Member of the European Parliament, the Ombudsman considers that the number of applications suggests that many candidates, also from Member States other than Greece, did have enough time to take knowledge of the vacancies and to submit an application.

40. Taking all the foregoing into account, the Ombudsman considers that, on balance, a finding that there was maladministration in the way that Parliament exercised its discretionary powers would not be justified. Thus no maladministration is found as regards the second allegation.

41. However, in view of the fact that, in the present case, Parliament used 'indirect' means of publicity and that the time allowed included a holiday period, the Ombudsman will make another further remark in this regard.

C. Allegation of failure to specify the required professional experience for the AD 12 post

Arguments presented to the Ombudsman

42. The complainant argued that Parliament failed to specify the minimum number of years of professional experience which were required to apply for the AD 12 post.

43. Parliament replied that it decided not to indicate this in the call for expression of interest in order not to restrict excessively the number of applications that may meet the needs of the post. Thus, according to Parliament's opinion, the call for expression of interest merely required that applicants had to have "experience in designing and carrying out museum or exhibition projects" and "excellent economic and administrative experience of managing a cultural institute or comparable managerial experience". In Parliament's opinion, it did not exceed the boundaries of its discretionary powers in doing so.

44. In her observations, the complainant indicated that she believed that Parliament exceeded the boundaries of its discretionary powers by failing to indicate the minimum number of years of experience. However, she acknowledged that she could not refer to any specific rule in support of her allegation.

The Ombudsman's assessment

45. As a preliminary matter, the Ombudsman notes that the call for expression of interest merely indicated the following: "Qualifications: [...] experience in designing and carrying out museum or exhibition projects". Moreover, under the heading "Knowledge and experience" the call for expression of interest indicated "[e]xcellent economic and administrative experience of managing a cultural institute or comparable managerial experience". In its opinion, Parliament indicated that candidates "had to have" the above-mentioned experience. The Ombudsman assumes, however, that by thus using slightly different wording, Parliament did not intend to give a different meaning to the relevant part of the call for expression of interest. This assumption appears to be shared by the complainant, who did not comment on this issue.

46. In relation to the allegation included in his inquiry, the Ombudsman reiterates that the EU institutions enjoy a wide margin of discretion as regards the organisation and the conduct of recruitment procedures, as indicated above.[7]

47. In this context, the Ombudsman considers that the complainant has not put forward convincing reasons to support the view that Parliament should have specified the minimum number of years of professional experience which were required to apply for the AD 12 post. In contrast, Parliament has put a valid reason for not specifying the minimum number of years, namely to avoid restricting excessively the number of applications that may meet the needs of the post.

48. In view of this, the Ombudsman considers that Parliament did not exceed the limits of its broad discretionary powers when it decided not to establish a minimum number of years of professional experience in order to apply for the AD 12 post.

49. In the light of the foregoing, the third allegation should be considered as unfounded.

D. Allegation of failure to specify whether the responsibility for examining applications lay exclusively with the Selection Board and failure to explain the assessment methods

Arguments presented to the Ombudsman

50. The complainant argued that the selection procedure established in the calls for expression of interest was unlawful since Parliament's administration was responsible for pre-selecting the candidates that it deemed most suitable. In the complainant's view, the Selection Board would then only assess the applications of those candidates pre-selected by Parliament's administration. According to the complainant, this was contrary to the case-law of the Civil Service Tribunal established in Case F-35/08 Pachtitis v Commission,[8] which should be applied by analogy to the present case. The complainant submitted that the Selection Board should have the exclusive responsibility of selecting the applications.

51. Moreover, the complainant argued that Parliament failed to indicate in the calls for expression of interest the assessment methods for the applications, and whether written tests and/or interviews would take place.

52. Parliament pointed out that, according to the case-law, it enjoys a wide margin of discretion as regards the organisational arrangements for selection procedures and their conduct.[9] Moreover, it clarified that Parliament's administration was not competent to prepare a shortlist of candidates and that only the Selection Committee was empowered to do this. Moreover, together with its reply to the Ombudsman's request for further information, Parliament provided a copy of the minutes of a meeting of the Selection Committee that indicated that it examined all the applications submitted for the AD 12 post (including both the admissible and the inadmissible applications).

53. Parliament added that, as indicated in the minutes of the above-mentioned meeting, the Selection Committee assessed the applications for the AD 12 post with reference to the requirements concerning "knowledge and experience" which were established in the call for expression of interest.

54. Parliament further indicated that the reason why the calls for expression of interest did not mention any written or other tests was that it did not envisage any such tests. However, it added that during the selection procedure the Selection Committee decided to carry out interviews with the shortlisted candidates, which was within the scope of its discretionary powers.

55. In her observations, the complainant repeated that the selection procedure established in the calls for expression of interest was unlawful since Parliament's administration was responsible for pre-selecting the candidates.

The Ombudsman's assessment

56. The present allegation has two aspects. First, the complainant alleged that the selection procedure was unlawful since Parliament's administration was responsible for pre-selecting those candidates that it deemed most suitable, while only the Selection Board was entitled to select the candidates. Second, the complainant alleged that Parliament failed to indicate in the call for expression of interest the assessment methods for the applications, and whether written tests and/or interviews would take place.

57. As regards the first aspect of this allegation, the Civil Service Tribunal held in the Pachtitis judgment that "it is subsequently for the selection board itself [...], first, to draw up a list of candidates who meet the requirements set out in the notice of competition, second, to proceed with the tests and, third, to draw up a list of suitable candidates, and to send it to the appointing authority."[10] The Ombudsman notes that Pachtitis concerned a selection procedure for officials. However, Parliament did not dispute the complainant's argument that the Pachtitis judgment should apply by analogy to the present case.

58. In relation to the selection procedure, Annex 1 of the call for expression of interest concerning the AD 12 post establishes the following: "Candidates with the most suitable profile will be invited to send a full application file with supporting documents which will then be submitted to the Joint Committee. Consequently, a list of suitable candidates will be established." Annex 2 of the call for expression of interest concerning the contract agent posts contains a similar statement which refers to the Selection Committee.

59. The Ombudsman considers that the wording of the calls for expression of interest is not entirely clear on this issue. Indeed, these calls for expression of interest may be interpreted as suggesting that a pre-selection of the most suitable candidates would be made by an unspecified entity (presumably, by Parliament's administration) and that the pre-selected candidates would be invited to send a full application to the Selection Committee/Joint Committee, which would then draw up the final list of selected candidates.

60. However, Parliament emphasised in its opinion and in its reply to the request for further information that the Selection Committee carried out the selection of candidates and not Parliament's administration. Moreover, Parliament's representatives indicated during the inspection of the file by the Ombudsman's services that the administration merely screened the applications in order to identify those which were admissible. According to Parliament's representatives, the Selection Committee received all the applications, including the inadmissible ones for verification.

61. In principle, in view of the presumption of legality attaching to any statement of an institution,[11] the Ombudsman has no reasons to question the truthfulness of a statement made by another institution, unless there are indications that it may not be accurate.

62. In relation to this, it is useful to examine the documents included in the file relating to the works and tasks of the Selection Committee.

63. The minutes of a meeting held by the Selection Committee after the extension of the deadline for the AD 12 post (which were submitted with Parliament's reply to the request for further information) indicate the following: "Finally, a total of 122 applications were submitted, which have been received by the EP's Directorate-General for Personnel. Many of them were deemed inadmissible by DG PERS, mainly due to a lack of sufficient experience [...]. A selection board has been appointed [...] in order to examine the admissible and the non-admissible applications and to further establish a shortlist to be transmitted to DG PERS." This passage appears to suggest that Parliament's administration reviewed the applications received and identified those which in principle would appear to be inadmissible due to insufficient experience. However, it also appears that all the applications (including both the admissible and the inadmissible ones) were submitted to the Selection Committee for its assessment. Therefore, this document appears to confirm Parliament's opinion and the statement made by Parliament's representatives during the inspection.

64. In the course of his inquiry, the Ombudsman found no indication that the selection procedure for the contract agent posts was different from that for the AD 12 post in relation to this issue. Therefore, the considerations set out above should equally apply to the selection procedure for the contract agent posts.

65. In the light of the foregoing, the Ombudsman considers that the first aspect of the present allegation should be considered as unfounded.

66. The second aspect of the present allegation concerns the complainant's criticism that Parliament failed to indicate in the call for expression of interest the assessment methods for the applications, and whether written tests and/or interviews would take place.

67. Parliament conducted the selection procedure at stake by assessing the application files sent by the candidates and by holding interviews with the selected applicants.

68. Therefore, the Ombudsman considers that Parliament cannot be criticised for failing to provide details in the call for expression of interest about any written tests since no such tests took place.

69. Moreover, although the call for expression of interest did not explicitly state that the selected candidates would be invited to an interview, all potential applicants should have expected that interviews would take place. Indeed, it seems unrealistic that an applicant for a position may expect to be offered the position in question without participating in an interview.

70. For the reasons indicated above, the second aspect of the fourth allegation should also be considered as unfounded.

71. The Ombudsman points out, however, that calls for expression of interest should provide as complete information as possible to potential candidates. Thus, it would be useful if future calls of expression of interest could explicitly inform potential candidates as to whether interviews will take place. Therefore, the Ombudsman will make another further remark in this regard. Parliament should inform the Ombudsman of the action it will take in relation to his additional further remark.

E. Allegation of failure to comply with the procedures to which Parliament had publicly committed

Arguments presented to the Ombudsman

72. The complainant argued that Parliament failed to comply with the selection procedures to which it had publicly committed. In particular, the complainant referred to Parliament's website and to a brochure in which, in her view, Parliament indicated that all information concerning calls for expression of interest could be found on EPSO's website. Moreover, according to the complainant, these sources also indicated that, in particular, Parliament should have published the call for expression of interest for the AD 12 post in the Official Journal.

73. Parliament disputed the complainant's allegation.

74. As regards Parliament's website (which stated that notices of competitions are published in the Official Journal and in national newspapers), Parliament indicated that this statement did not concern the recruitment of temporary agents and contract agents. In Parliament's opinion, this statement concerned only the recruitment of officials.

75. As regards the brochure, Parliament suggested that it did not contain any information concerning recruitment procedures for temporary agents and contract agents.

76. Moreover, Parliament emphasised that neither its website nor the brochure in question was legally binding upon it.

77. Finally, Parliament noted that Article 12(3) of the CEOS establishes that EPSO "shall, at their request, provide assistance to the different institutions with a view to the selection of temporary staff, in particular by defining the contents of the tests and organising the selection procedures". Article 82(5) of the CEOS contains an identical provision concerning contract staff. Therefore, Parliament concluded that these provisions do not impose an obligation upon Parliament to request EPSO's assistance when it organises a selection procedure. They merely give Parliament's the possibility to request such assistance if it considers it necessary, within the scope of its discretionary powers to organise selection procedures.

78. In her observations, the complainant admitted that Parliament's website and the brochure in question are not legally binding upon Parliament. However, she argued that, even if the website and the brochure are not legally binding, Parliament should not provide misleading information through these sources concerning how Parliament recruits its staff.

The Ombudsman's assessment

79. As a preliminary matter, the Ombudsman notes that, as Parliament correctly pointed out, the CEOS do not impose any obligation on Parliament to request EPSO's assistance in order to conduct its selection procedures for temporary and contract agents. However, the allegation included in the Ombudsman's inquiry did not concern the alleged infringement by Parliament of the CEOS. Instead, it concerned Parliament's alleged failure to comply with procedures to which it had publicly committed, namely through its website and through a brochure.

80. The Ombudsman notes that, according to his well-established decisional practice, while failure to respect legal obligations is a form of maladministration, the concept of maladministration is broader than the concept of legality.[12] Thus, if Parliament had failed to comply with procedures to which it had publicly committed trough its website and/or through a brochure, this would constitute an instance of maladministration. Therefore, in the Ombudsman's view, what is relevant for the present purposes is the content of the information provided by Parliament, rather than the alleged non-binding nature of its website and its brochure.

81. According to the documents obtained in the course of the present inquiry, Parliament's website indicated the following:

"How do you become a Community official?

The European Parliament, like all the other EU institutions, recruits by competition. There are various types of competitions at different levels, which means you can apply for different posts such as administrator, lawyer, linguist, interpreter, translator, assistant, secretary, skilled employee, etc.

Notices of competition are published in the Official Journal of the European Union (OJEU) and in national newspapers. To obtain information on competition announcements and the projected timetable, you can click on the link to the European Communities Personnel Selection Office (EPSO)."[13]

82. In the Ombudsman's opinion, it is apparent from the previous passage that, as Parliament correctly argued, this page of Parliament's website concerns the recruitment of officials through competitions, rather than the recruitment of temporary and contract agents. Therefore, the Ombudsman considers that Parliament did not fail to comply with the procedure announced in its website in the present case.

83. Moreover, the brochure entitled 'Join the European Parliament - Opportunities for young graduates' states the following in the section entitled 'Careers as an administrator in the general secretariat':

"All information on current, new and forthcoming competitions and how to register for them can be found on the website of the European Personnel Selection Office (EPSO) at the following address: http://europa.eu/epso/"

84. It appears from the foregoing that this excerpt from the brochure equally concerned the organisation of competitions to recruit officials. Therefore, Parliament did not fail to comply with the procedure announced in the present case.

85. However, the Ombudsman notes that this brochure also stated the following in the section entitled 'Fixed-term contracts for administrators in the general secretariat':

"Special rules apply to staff recruited under fixed-term contracts. All information on current or forthcoming calls for expression of interest, together with details of application procedures, can be found on the website of the European Personnel Selection Office (EPSO) at the following address: http://europa.eu/epso/"

86. The Ombudsman considers that this passage of the brochure concerned the recruitment of temporary and/or contract agents by Parliament since officials are recruited for an indefinite period of time. Moreover, the brochure explicitly indicated that "all information on current and forthcoming calls for expression of interest" could be found on EPSO's website (emphasis added).

87. Therefore, in the Ombudsman's view, Parliament committed itself to publish details of selection procedures for temporary and/or contract agents in EPSO's website, or at least gave that impression.

88. The Ombudsman notes that, in its opinion, Parliament explained that it had taken the view that it would be inappropriate to seek EPSO's assistance in view of the very specific profiles sought.[14] Even though Parliament may indeed have had valid reasons not to seek EPSO's assistance in the specific circumstances of the present case, the fact remains that it had publicly announced that "all information on current and forthcoming calls for expression of interest" could be found on EPSO's website. The Ombudsman considers that the brochure in question was therefore likely to mislead potential applicants as regards the advertising of vacancies by Parliament.

89. For these reasons, the Ombudsman concludes that Parliament committed an instance of maladministration in the present case.

90. The Ombudsman will therefore make a critical remark in this regard.

F. Allegation of failure to include the calls for expression of interest and/or the relevant job descriptions, the requirements on qualifications and experience in the agenda of the Board of Trustees

Arguments presented to the Ombudsman

91. The complainant argued that Parliament failed to include the calls for expression of interest, the relevant job descriptions and the requirements on qualifications and experience in the agenda of the Board of Trustees' meetings before the calls for expression of interest were publicised.

92. In its opinion, Parliament indicated that the Board of Trustees was not competent to consider the applications in the light of the calls for expression of interest, which was the exclusive competence of the Selection Board.

93. In its reply to the Ombudsman's request for further information, Parliament indicated that the Board of Trustees was regularly informed of the progress of the selection procedure concerning the 13 posts for contract agents. As regards the AD 12 temporary agent post, Parliament submitted that the Board of Trustee's role was limited to making a recommendation to Parliament. Parliament added that the Board of Trustees received the necessary information and documents in order to make a well-informed recommendation.

The Ombudsman's assessment

94. In the Ombudsman's view, the main question that needs to be addressed is whether the Board of Trustees should have considered the calls for expression of interest before they were published.

95. In this respect, it is necessary to analyse the Rules of the Board of Trustees (the 'Rules'). In particular, Article 1(1) ('Mission') of the Rules establishes the following (in French):

"Le conseil de direction [Board of Trustees] supervise les travaux de création de la Maison de l'histoire européenne. Il prend les décisions fondamentales concernant les missions de cet organisme. En particulier

-il détermine les grandes lignes de sa programmation;

-il supervise les activités de l'équipe chargée de la réalisation de ce projet;

-il propose la nomination du directeur."

96. In the Ombudsman's opinion, the calls for expression of interest do not appear to be among the "fundamental decisions concerning the missions" of the House of European History. In particular, the calls for expression of interest do not seem to relate to the main lines the House of European History's programme or to the supervision of the work of the team in charge of this project. Furthermore, although the Board of Trustees was competent to propose the appointment of the Director, this does not necessarily imply that it had to consider the calls for expression of interest.

97. Therefore, it does not appear that the Board of Trustees should have considered the calls for expression of interest. Thus, the Ombudsman concludes that Parliament did not fail to include the calls for expression of interest in the agenda of the Board of Trustees' meetings before the calls for expression of interest were publicised. Moreover, ample evidence has been gathered in the course of the Ombudsman's inquiry to support Parliament's contention that the Board of Trustees was kept well-informed about the progress of the selection procedure, including in particular the selection of the Director of the House of European History (i.e., the AD 12 post).

98. Therefore, the sixth allegation should be considered as unfounded.

G. The claim

Arguments presented to the Ombudsman

99. The complainant claimed that Parliament should cancel the recruitment procedure and re-advertise it in accordance with the Conditions for Employment of Other Servants and the Code of Good Administrative Behaviour.

100. Parliament contested the complainant's claim since, in its view, it did not commit any instance of maladministration.

The Ombudsman's assessment

101. The Ombudsman considers that one of the complainant's allegations is well-founded in part, as explained above. However, the question remains as to whether cancelling the recruitment procedure and re-advertising it would constitute an appropriate way to eliminate the maladministration resulting from the fact that Parliament failed to comply with its (at least apparent) commitment to publish information about this recruitment procedure in EPSO's website.

102. In this respect, the Ombudsman notes that the recruitment procedure has already concluded and appointments have been made. Therefore, it is necessary to balance on the one hand the interests of the complainant and on the other hand the interests of the persons who have been appointed, as well as the interest of the service. In this context, particular regard should be had to the principle of proportionality and the principle of legitimate expectations.[15]

103. In view of the foregoing, the Ombudsman considers that it is not appropriate to invite Parliament to consider cancelling the recruitment procedure and re-advertising it. Therefore, the claim put forward by the complainant cannot succeed in the circumstances of the present case. Moreover, the Ombudsman is unable to envisage any other course of action that could eliminate the instance of maladministration. In these circumstances, the Ombudsman will close the case with a critical remark.

H. Conclusions

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

In a brochure concerning recruitment matters, Parliament indicated that all information on current or forthcoming calls for expression of interest for the recruitment of temporary or contract staff would be made available on the website of the European Personnel Selection Office (EPSO). However, in the present case no such information was made available by Parliament through EPSO's website, contrary to its commitment or at least contrary to the impression it had given. This constitutes an instance of maladministration.

No maladministration was found as regards the complainant’s other allegations.

The complainant and Parliament will be informed of this decision.

Further remarks

(1) Parliament could consider advertising on its website those vacancies which are not published in the Official Journal or through EPSO.

(2) Parliament could, if and when it uses 'indirect' means of publicity for vacancies, be particularly attentive to the need to allow for an adequate period of time for candidates to apply.

(3) In future calls of expression of interest, Parliament could inform potential candidates as to whether interviews will take place.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 July 2012

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[1] See, for instance, the decision of the Ombudsman on complaint 1386/2002/IP against the European Commission, at points 1.1-1.2, and the decision of the Ombudsman on complaint 353/99/ME against the European Commission, at point 4.3.

[2] See, by analogy, Case T-494/04 Neirinck v Commission [2006] SC-I-A-2-259 and SC-II-A-2-1345, paragraph 101, Case T-56/89, Bataille v Parliament [1990] ECR II-597, paragraph 42, and Case T-357/04 Chetcuti v Commission [2006] SC-I-A-2-255 and SC-II-A-2-1323, paragraph 49. See also the Opinion of Advocate-General Bot in Case C-16/07 P Chetcuti v Commission [2008] ECR I-7469, paragraphs 23 and 57.

[3] Case T-357/04, Chetcuti v Commission [2006] SC-I-A-2-255 and SC-II-A-2-1323, paragraph 51.

[4] According to the information available on its website: http://www.ne-mo.org

[5] See footnote 2 above.

[6] See Article 1(2) of Annex III to the Staff Regulations.

[7] See case-law cited in footnote 2 above.

[8] Case F-35/08 Pachtitis v Commission, judgment of 15 June 2010, not yet published in the ECR.

[9] Case T-494/04 Neirinck v Commission, cited above.

[10] Case F-35/08 Pachtitis v Commission, cited above, paragraph 52; the Commission's appeal, against this judgment was rejected: Case T-361/10 P Pachtitis v Commission, judgment of 14 December 2011, not yet published in the ECR.

[11] See, for instance, Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, judgment of 26 April 2005, not yet published in the ECR, at paragraph 98: "in view of the presumption of legality attaching to any statement of an institution, it should be noted that the applicant has not adduced any evidence that the Council’s statement – that it had received an adverse opinion from the States concerned – is erroneous."

[12] See, for instance, point 95 of the Ombudsman's Decision on complaint 1935/2008/FOR.

[13] This information can still be found at Parliament's website at http://www.europarl.europa.eu/aboutparliament/en/0079d60a3f/Recruitment.html

[14] See point 15 of the present decision.

[15] See Case T-10/02, Girardot v Commission [2004] ECR-SC-A-109 and II-483 (the 'interim judgment'), paragraphs 85 to 87.