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Decision on how the European Union Intellectual Property Office (EUIPO) handled a recruitment procedure (complaint: 1388/2021/JN)

Dear Mr X,

You submitted a complaint to the European Ombudsman against the European Union Intellectual Property Office (EUIPO) concerning how it handled a recruitment procedure in which you participated.

In July 2020, the EUIPO informed you that, based on your results, it was envisaging your transfer from your current employer. Three weeks later, it informed you that, due to internal reorganisation, it would not proceed with the transfer because it had to cover the position internally.

You complained to the EUIPO about how it handled the recruitment procedure. In particular, you claimed that its course of action had been unlawful, discriminatory and had breached your legitimate expectations.

In response to your complaint, the EUIPO informed you that the steps it had taken were in line with the relevant EU case-law. It said that the decision on internal reorganisation was announced only after you had been informed that the EUIPO was envisaging your transfer. It further said that, as a result of the internal reorganisation, the relevant department would not receive any additional resources. Thus, the EUIPO did not (re)publish the vacancy notice but decided to redistribute the relevant tasks among the available staff members.

The EUIPO also said that it had not given you “precise, unconditional and consistent assurances” that it would proceed with your transfer. It only informed you that it was “envisaging” your transfer. In its view, this could not create any legitimate expectations within the meaning established by EU case-law.

In your complaint to the Ombudsman, you claim, in particular, that the EUIPO disregarded the applicable legal rules and breached your legitimate expectations. You claim that the EUIPO should apologise to you for the way it handled the procedure.

We understand your disappointment and frustration, and appreciate the difficult personal situation that this procedure has put you in. However, after a careful analysis of all the information you provided with your complaint, we have decided to close our inquiry with the following conclusion:

Based on the information and evidence provided in the complaint, there is no indication that there was maladministration in the EUIPO’s decision to cancel the recruitment procedure.

This is because the EUIPO appears to have provided you with reasonable explanations and clarifications.

The EUIPO is correct in stating that, according to EU case-law, an ‘appointing authority’ (the institution or agency responsible for the recruitment procedure) is under no legal obligation to fill a post for which it has launched a recruitment procedure. The Appointing Authority has discretion in organising its services and may decide to cancel the vacancy notice and the related selection procedure even at a very advanced stage of the process. However, it must provide objective reasons for such a course of action.[1]

In this case, the EUIPO explained that it was unable to proceed with your transfer due to internal reorganisation. This internal reorganisation forced the relevant department to cover the post by redistributing tasks internally among existing staff members. We consider that these are objective reasons for deciding not to proceed with your transfer.

The EUIPO was also correct in stating that, according to EU case-law, there cannot be “legitimate expectations” unless the administration provides “assurances” that are “precise, unconditional and consistent”.[2] The EUIPO informed you that it was “envisaging” your transfer. It also asked you to confirm your interest and said that it would then contact your current employer to “verify the necessary conditions and agree on the modalities of the transfer”. While we understand that this led you to believe that your transfer would take place, it does not appear to amount to an “assurance” that is “precise” and “unconditional”.

We understand that you believe that there may have been undue influence on the recruitment procedure. However, you do not provide any information or evidence to substantiate your argument. Should you have clear evidence of this, you may wish to raise it with the European Anti-Fraud Office (OLAF).

While we have decided to close our inquiry, we have written to the EUIPO and asked it to reflect on whether it could improve how it communicates with candidates that it envisages to recruit.

Although we appreciate that you may be disappointed with this outcome, we hope that you will find these explanations helpful.

Yours sincerely,

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 09/02/2022

 

[1] See, among other references, C-26/68 Fux v. Commission, judgment of the Court of 24 June 1969, para. 11, C-316/82 and 40/83 Kohler v. Court of Auditors, judgment of the Court of 9 February 1984, para. 22, T-38/89 Hochbaum v. Commission, judgment of the Court of First Instance of 14 February 1990, para. 15, T-331/00 and T-115/01 Bories and others v. Commission, judgment of the Court of First Instance of 27 November 2003, para. 171-178.

[2] See, among other references, T-203/97 Forvass v. Commission, judgment of the Court of First Instance of 6 July 1999, para. 70-71, T-347/03 Branco v Commission, judgment of the Court of First Instance of 30 June 2005, para. 102.