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Recommendation of the European Ombudsman in case 1641/2015/ZA on the European Personnel Selection Office’s refusal to allow the complainant to apply to two concurrent competitions for recruiting translators and failure to explain the reasons for applying this practice

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

The case concerned the European Personnel Selection Office’s (EPSO) practice of not permitting candidates to apply for more than one concurrent recruitment competition for EU civil servants even where they fulfilled the criteria. EPSO refused to allow the complainant to submit applications to two concurrent competitions for recruiting translators for the EU institutions, and failed to convincingly explain the reasons for applying this practice.

The Ombudsman found that this practice could have the consequence of hindering the recruitment of the most qualified persons and that, as a result, EPSO should be able to provide convincing reasoning as to why it was applying the practice to the competitions in question. The Ombudsman found that EPSO´s failure to provide such reasoning to the complainant constitutes maladministration. She found also that any continuation of the practice, in the absence of solid reasoning, would necessarily also constitute maladministration. The Ombudsman therefore recommends to EPSO that it immediately review its policy in relation to this practice in the light of a relevant judgment of the Civil Service Tribunal.

The background to the complaint

1. In July 2015, the European Personnel Selection Office (EPSO) published a notice of open competitions for recruiting translators for the EU institutions[2]. The notice detailed competitions for the following languages: Finnish (EPSO/AD/315/15); Hungarian (EPSO/AD/316/15); Latvian (EPSO/AD/317/15); Polish (EPSO/AD/318/15); Portuguese (EPSO/AD/319/15); and Slovak (EPSO/AD/320/15). The different competitions all aimed to recruit translators at the same grade (AD5).

2. The notice stated that candidates were allowed to participate in one competition only.

3. The complainant wanted to participate in two competitions (Polish language EPSO/AD/318/15 and Portuguese language EPSO/AD/319/15), as she believed she fulfilled the required criteria for both.

4. She asked EPSO to explain the reasons why candidates could participate in one competition only. In reply EPSO stated "[n]o specific reason, it is clearly mentioned in the notice of the open competition, page 1". Subsequently, the complainant submitted a complaint online, asking EPSO to allow her to apply for two competitions. EPSO replied that the notice is a legally-binding document and, therefore, the complainant had to choose one competition only.

5. Dissatisfied with EPSO’s reply, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complaint that:

EPSO failed to explain why candidates were not allowed to apply for more than one concurrent competition if they satisfied the requirements for doing so.

7. The complainant wanted to be allowed to apply for the competition from which she had been excluded. She also wanted EPSO to change this practice.

8. During the inquiry, the Ombudsman asked EPSO to explain the reasons why candidates were not allowed to apply for more than one competition at the same time when the competitions were published in one notice. This request was made against the background of a previous Ombudsman inquiry into a similar matter. This previous inquiry found[3] that EPSO had wrongfully applied this practice, at odds with a judgment of the EU Civil Service Tribunal in 2009 (the Di Prospero judgement).

9. The Di Prospero case concerned a clause in a notice of two simultaneous competitions for the recruitment of administrators in the same field but at different grades. The level of experience required, and consequently the grade attached to the post, differed. The notice prohibited candidates from registering for more than one of the two competitions. Thus, for instance, a candidate who had 15 year experience and who would qualify under both competitions, could not apply for more than one competition (the “only one” concurrent recruitment competition-rule).

10. In the Di Prospero case the Civil Service Tribunal rejected the “only one” concurrent recruitment competition-rule. The reasoning of the Tribunal was in essence: for it to be lawful, a clause prohibiting participation in more than one competition must be justified by requirements connected with the post to be filled and more generally by the interest of the service. The clause must also comply with the objective of the first paragraph of Article 27 of the EU Staff Regulations, namely to recruit officials of the highest standard of ability, efficiency and integrity. Moreover, considerations of a purely practical nature, deriving from the practical difficulties of organising and conducting competitions at the same time, do not come within the interest of the service in the given context. Such considerations therefore cannot justify the “only one” concurrent recruitment competition-rule.

12. In the course of the inquiry, the Ombudsman received EPSO’s reply and, subsequently, the comments of the complainant in response to EPSO’s reply. The Ombudsman requested and received further clarifications from EPSO. The Ombudsman’s analysis takes into account the arguments and views put forward by the parties. 

Arguments presented to the Ombudsman

13. The complainant argued that EPSO did not provide a valid argument for not allowing her to participate in the two competitions. She noted that, if the translator competitions were organised at different times in the same year or in different years, she could have participated in both competitions, as she fulfilled both the general eligibility criteria and the specific requirements with regards to languages, qualifications and work experience.

14. In the complainant’s view, practical or organisational considerations were the only plausible explanation for prohibiting candidates from participating in more than one of the translator competitions. She argued that prohibiting more than one simultaneous application to concurrent competitions, based only on practical considerations, seemed to be incompatible with EU Staff Regulations in the light of the Di Prospero judgement[4]. The complainant suggested that, in the future, EPSO should organise translator competitions separately for each language, thereby allowing candidates fulfilling the requirements for more than one language to participate in more than one competition.

15. EPSO maintained that “[t]he prohibition on parallel applications for translator competitions organised simultaneously for the same grade but different languages is a matter of staff selection policy agreed jointly by the EU institutions represented in EPSO’s Management Board”. EPSO said, in essence, that its Management Board[5] had agreed that the Di Prospero judgment should be interpreted narrowly and apply only to competitions with precisely the same circumstances as the competitions in the Di Prospero case, namely, “two competitions published in parallel concerning identical professional profile but two different grades”. EPSO also said that its Management Board had decided not to apply the Di Prospero judgment to “competitions published simultaneously for the same grade but different fields”.

The Ombudsman's assessment leading to a recommendation

16. In the Di Prospero case, the Civil Service Tribunal found that the practice of allowing candidates to apply for only one concurrent recruitment competition-rule was at odds with the EU Staff Regulations. The Ombudsman’s assessment must be based on this judicial ruling.

17. Although the facts of this case are different from the Di Prospero case, the legal reasoning behind the Di Prospero judgment is relevant in this case. A policy of prohibiting candidates from applying to more than one concurrent competition for which they meet the requirements could have the consequence of hindering the recruitment of the best candidates for the EU civil service, something which is at odds with the Staff Regulations. In this case, this practice could prevent the recruitment of the best translators, who may have met the criteria for more than one of the competitions, for instance because the person is bilingual.

18. Against that background, EPSO must be able to provide particularly convincing reasoning for applying this practice of allowing candidates to apply to one competition only when more competitions are published under one notice. EPSO has not provided such reasoning. Simply stating that the practice has been agreed by the institutions represented in the EPSO Management Board does not justify its application. EPSO’s failure to properly explain the reasons for its position constitutes maladministration. Should EPSO decide to continue with this practice in future, without having first articulated reasons which satisfy the tests in the Di Prospero judgment, it would necessarily also constitute maladministration.

19. The Ombudsman therefore makes a recommendation (below) arising from this maladministration. However, while the Ombudsman has found maladministration by EPSO, it would appear to be disproportionate to ask EPSO to re-run the competition in question.

Recommendation

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

EPSO should, within six months, review its policy of not permitting candidates to apply for more than one concurrent competition at a time. This review should have regard in particular to the tests set out in the Di Prospero judgment in accordance with which the current restrictive practice may be maintained only on the basis of requirements connected with the post to be filled and more generally by the interest of the service

EPSO and the complainant will be informed of this recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, EPSO shall send a detailed opinion by 19 June 2018.

 

Emily O'Reilly

European Ombudsman

 

Strasbourg, 19/12/2017

 

[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] http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:C2015/249A/01&from=EN

[3] Decision in case 919/2012/ANA on the European Personnel Selection Office (EPSO)'s prohibition on candidates participating in parallel competitions. The full decision can be found at https://www.ombudsman.europa.eu/cases/decision.faces/en/65581/html.bookmark.

[4] In particular Article 27 of the Staff Regulations, according to which EPSO is obliged to ensure candidates of the highest qualifications and standards are recruited to the EU civil service (see footnote 4 on the Di Prospero judgement).

[5] EPSO’s Management Board is made up of representatives from the different EU institutions and bodies. It takes general management decisions, which are implemented by EPSO in the organisation of competitions and selection procedures for the recruitment of EU civil servants.