Strasbourg, 5 April 2005

Dear Mr X.,

On 29 April 2004, you made a complaint to the European Ombudsman against Eurojust concerning the selection procedure for a post of Head of the Budget and Finance Department of Eurojust.

On 7 June 2004, I forwarded the complaint to the President of the College of Eurojust. On 27 August 2004, Eurojust sent an opinion and I forwarded it to you with an invitation to make observations, which you sent on 5 October 2004.

I am writing now to let you know the results of the inquiries that have been made.

Your complaint was made in English and Eurojust gave its opinion in the same language. On 20 September 2004, you asked me whether you might submit your observations in Dutch, which is your mother tongue. On 29 September 2004, I replied that, given that Dutch is a Treaty language, you could do so. However, your observations of 5 October 2004 were sent in English. I did not understand you, therefore, to wish to change the language of the complaint and the present decision is being sent to you in English. A translation of the decision into Dutch could be prepared and sent to you on request.

THE COMPLAINT

According to the complainant, the relevant facts were as follows:

In February 2004 the complainant applied for the position of Head of the Budget and Finance Department of Eurojust. Together with his application, he submitted his diploma of handelsingenieur.

His application was not accepted and he was not short-listed for an interview.

On 14 April 2004, the complainant requested Eurojust to inform him why his application had been rejected.

In its reply, Eurojust stated that he did not fulfil the formal requirements as specified in the vacancy notice, namely the requirement of having a university degree, given that his diploma was not considered a university diploma and that the vacancy notice did not foresee any possibility of accepting equivalents to a university diploma.

On 29 April 2004, the complainant lodged a complaint with the European Ombudsman.

He alleged that Eurojust wrongly failed to consider his diploma of handelsingenieur as a university degree.

He also contested the procedure used by Eurojust, on the grounds that the person selected had already been working in the position in question.

He claimed that Eurojust should restart the selection procedure for the position of Head of the Budget and Finance Department and that the selection procedure should be more transparent.

THE INQUIRY

The opinion of Eurojust

The opinion can be summarised as follows:

On 19 December 2003, the vacancy notice concerning the position of Head of Budget and Finance of Eurojust was published on Eurojust's website. An application form, including explanations for candidates on how to apply, was also published.

The complainant applied for the position. Eurojust treated his application following its usual procedures, which are established as part of Eurojust's recruitment policy and outlined on Eurojust's website.

On 17 February 2004, Eurojust sent to the complainant the acknowledgement of receipt of his application. Furthermore, Eurojust kept all applicants informed about the progress of the selection procedure through its website, which was constantly updated.

On 14 April 2004, the complainant informed Eurojust that he was disappointed that he had not been selected for the post and he suggested that his application was not accepted because it had been submitted too late.

On 19 April 2004, Eurojust explained to the complainant that, after consulting several sources concerning the complainant's diploma, his application had been rejected because his diploma of handelsingenieur issued by the Economische Hogeschool Sint-Aloysius could not be considered a university degree.

In its opinion, Eurojust stressed that, when carrying out its recruitment procedure, it pays special attention to the equivalence of diplomas. In its notice of vacancy for the post in question, Eurojust stated that the candidates with a university degree (preferably in economics or finance) could be accepted and intentionally did not state that candidates with the equivalent of a university degree could also be accepted. According to Eurojust, the answer to the question whether a diploma shall or shall not be considered as a university degree can only be given upon the examination of relevant provisions of national law of the country in which such degree was conferred. In the complainant's case, Flemish law was applicable. The Flemish system recognises two kinds of higher education institutions: the hogescholen (to which the Hogescholendecreet applies) and the universiteiten (covered by the Universiteitendecreet). The distinction between these two higher education institutions results in two different kinds of diplomas awarded. This distinction is also reflected in the new Structuurdecreet of 4 April 2003, according to which, in the future, hogescholen will be entitled to award university degrees (bachelor or master degrees) but only after accompanying measures have been put in place. Eurojust concluded that the complainant's application could not be accepted, given that the formal requirements of the vacancy notice had not been met.

Eurojust rejected any allegation of lack of transparency in the selection procedure and stated that it fully respected its recruitment policy and administrative procedures.

Eurojust asked the Ombudsman to address any further correspondence concerning the complaint to the Administrative Director of Eurojust.

The complainant's observations

In his observations on Eurojust's opinion, the complainant maintained his view that his degree of handelsingenieur was a university degree. He stated that he had been the assistant of a Professor at the Department of International Economics at the University of Y from 1 February 1995 to 1st December 1995 and that he had passed an examination to become a civil servant at university level and worked as an assistant-director, just like the holder of a university degree. He also stated that the present Director General Z at the Commission has the same degree as himself.

He also put forward that according to the legal provisions to which Eurojust refers in its opinion, the holders of the title of Handelsingenieur may also use the title of master.

Finally, the complainant takes the view that a candidate for a post who is already in function has an advantage over external candidates. He also stated that he is contemplating whether to bring proceedings before the European courts as regards the possible discrimination due to this fact.

THE DECISION

1 Alleged wrong assessment of a diploma

1.1 The complainant alleges that Eurojust wrongly failed to consider his diploma of handelsingenieur as a university degree.

1.2 Eurojust argues that the relevant national law determines the level of the diploma awarded by the higher education institutions of that country.

According to Eurojust, the answer to the question whether a diploma shall or shall not be considered as a university degree can only be given upon the examination of relevant provisions of national law of the country in which the degree was conferred. After having consulted several sources, Eurojust took the view that according to the law of the Flemish region of Belgium, which is applicable as regards the diploma awarded to the complainant, the complainant's diploma of handelsingenieur could not be considered a university degree given that (1) it was conferred by a (Belgian) hogeschool and not a university and (2) his diploma was not covered by the new Belgian Higher Education Act of 4 April 2003, according to which hogescholen may award academic bachelor's degrees and master degrees, when they operate in the framework of an association with universities.

1.3 The Ombudsman notes that the notice of competition required candidates, on pain of being disqualified from the competition, to hold a university degree and that no equivalence to a university degree was foreseen.

1.4 The Ombudsman considers that Eurojust appears to have approached the matter of the complainant's diploma correctly by studying the relevant provisions of national law and that its conclusion that the complainant's degree is not a university degree appears reasonable(1).

1.5 The Ombudsman takes the view, furthermore, that neither the previous posts occupied by the complainant, nor the fact that somebody else holding the same diploma works for the Commission in a senior post (the arguments raised by the complainant in his observations) could be relevant for Eurojust’s consideration of the complainant's diploma of handelsingenieur for the purposes of its own competition.

1.6 On the basis of the above, there appears to have been no maladministration on the part of Eurojust as regards this aspect of the complaint.

2 Alleged lack of transparency in the selection procedure

2.1 The complainant also contested the procedure used by Eurojust, on the grounds that the person that was selected had already been working in the position in question.

He claims that Eurojust should restart the selection procedure for the position of Head of the Budget and Finance Department and that the selection procedure should be more transparent.

2.2 In its opinion, Eurojust rejects any allegation of lack of transparency in the selection procedure and states that it fully respected its recruitment policy and administrative procedures.

2.3 In his observations on Eurojust's opinion, the complainant takes the view that a candidate for a post who is already in function has an advantage over external candidates.

2.4 The Ombudsman notes that according to general information on recruitment at Eurojust (http://www.eurojust.europa.eu/policy.htm), Eurojust has currently no permanent officials but is staffed mainly by temporary agents recruited through open selection procedures.

2.5 The Ombudsman recalls that as regards the participation in the European competition of external and internal candidates, the Court of Justice has ruled that all candidates should be treated equally with regard to the same competition(2).

2.6 The Ombudsman considers that, if the qualifications that candidates must meet are formulated properly in the vacancy notice and applications are handled correctly and fairly, equal treatment can be ensured when a person who is already occupying a post is a candidate. The Ombudsman takes the view that the complainant has not provided any evidence to show that the selection procedure in this case failed to meet these criteria.

2.7 In the light of the above, there appears to have been no maladministration on the part of Eurojust. The Ombudsman finds, therefore, that the complainant's claim cannot be sustained.

3 Conclusion

On the basis of the European Ombudsman's inquiries into the complaint, there appears to have been no maladministration on the part of Eurojust. The Ombudsman therefore closes the file.

The Administrative Director of Eurojust will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) The Ombudsman notes that, according to the information provided in the official website of the Ministry of the Flemish Community, (http://www.ond.vlaanderen.be/hogeronderwijs/download/changing.pdf), the Flemish hogescholen may award profession-oriented Bachelor's degrees, and that some hogescholen may award academic bachelor's degrees and master degree but only in the framework of an association with universities. However, so called "association" (i.e. the officially registered co-operation between a university and one or more hogescholen), was introduced by a new Belgian Higher Education Act and started to be implemented gradually only from the academic year 2004-2005.

(2) See case T-133/89, Burban v. European Parliament, (1990) II-00245, paragraph 37.