Strasbourg, 20 January 2005

Dear Mr X.,

On 17 August 2004, you made a complaint to the European Ombudsman concerning the European Investment Bank's handling of your application for a position as Financial Analyst at the EIB (reference FI04WWW03).

On 2 September 2004, I forwarded the complaint to the President of the European Investment Bank. The EIB sent its opinion on 5 October 2004. I forwarded it to you on 12 October 2004 with an invitation to make observations, which you sent on 25 October 2004.

On 23 November 2004, I asked the EIB for further information in relation to your complaint. The EIB replied on 8 December 2004. I forwarded this reply to you on 14 December 2004 with an invitation to make observations, which you sent on 21 December 2004.

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

THE COMPLAINT

On 16(1) May 2004, the complainant, a Cypriot national living in the United Kingdom, applied for a position as Financial Analyst (reference FI04WWW03) that had been advertised by the European Investment Bank (EIB). According to the complainant, he completed his application through the EIB's website as required, submitting both a cover note and a curriculum vitae (CV).

On 2 July 2004, and in the absence of a reply, the complainant decided to contact the EIB in order to inquire about the outcome of his application.

According to the complainant, it took him six expensive telephone calls to be able to talk to someone at the EIB's Human Resources department. He was told that the application could not be found. Still according to the complainant, after some searching it was discovered that the application had been registered using his first name as the surname. The complainant further submitted that he was told that the EIB did not have a copy of his CV and that he would be informed as to the outcome of his application.

On 9 July 2004, the complainant was informed in a standard letter sent by Mr. U. of the EIB that his application had been unsuccessful. The complainant submitted that this letter had been prompted by his inquiry of 2 July 2004. He further queried how the EIB had been able to evaluate his application against the job description if it did not have a copy of his CV.

The complainant considered that his CV very closely matched the job requirement and therefore asked the EIB to explain its decision not to short-list his application.

In his reply of 21 July 2004, Mr U. basically provided, according to the complainant, two reasons as to why his application had not been short-listed, namely (a) the lack of the minimum of five years of professional experience in the fields of financial and capital markets, bank management techniques and asset/liability management as required for this position and (b) the fact that it did not appear from his CV that the complainant possessed a "very good command or a sound grasp of French".

In his complaint to the Ombudsman, the complainant submitted that he had seven years of relevant professional experience (two years in asset management, one year in investment banking, two years in Audit & Corporate Finance, two years of Project Finance Management), that he clearly had experience in the fields of financial and capital markets, that his Portfolio Management experience and his experience as an Assistant Commercial Manager qualified as asset/liability management and that his experience as Portfolio Manager clearly indicated bank management techniques experience. The complainant further submitted that the job description had clearly required either English or French. He also expressed the view that the EIB as an EU institution was not allowed to discriminate against persons who did not speak French.

The complainant further alleged that when he had asked where he could complain against the treatment he had received, Mr U. had suggested, in an ironic tone, that he could contact the European Court of Justice. In the complainant's view, Mr U. should also have mentioned the possibility to complain to the Ombudsman.

The complainant expressed the view that Mr U. had never seen a copy of his CV and had fudged the reasons for not short-listing his application, as his colleagues had misplaced his (the complainant's) application and had never given it serious consideration. He further submitted that he had been lied to and that he had been discriminated against on the grounds of language.

The complainant noted that he had sent copies of his complaint to Members of the European Parliament both in the UK and in Cyprus and that he reserved the right to bring a case against the EIB before the European Court of Justice.

In his complaint to the Ombudsman, the complainant classified his grievances against the EIB under four headings. However, the first two of these appeared to be linked. It thus appeared that the complainant wished to make the following allegations:

(1) The EIB had failed to handle and evaluate his application properly.

(2) The reasons given for rejecting the application had been unfounded and discriminatory.

(3) The EIB had failed to provide complete information as to the possibilities of seeking redress.

THE INQUIRY

The European Investment Bank's opinion

In its opinion, the EIB made the following comments:

Online applicants were responsible for correctly entering data which was directly introduced in the EIB's application receipt system. The complainant had entered his forename in the box intended for his last name. As a result, the EIB's systems had automatically logged the complainant's application under his forename. The EIB's Human Resources department had therefore been unable to trace the application when the complainant had telephoned on 2 July 2004. The EIB's staff had subsequently corrected the mistake made by the complainant. This had however not at all interfered with the process of examining the application.

Because of the large number of applications (an average of 250 applications per post), the recruitment process at the EIB usually took some months to complete. In this particular case, the negative response had been sent to the complainant on 9 July 2004, at the same time at which other candidates had also received negative responses for the same position. The negative response had been made following the EIB's normal procedures in respect of recruitment and had not been in connection with the complainant's telephone inquiry of 2 July 2004.

The complainant did not have the minimum of five years of professional experience in the fields specified in the job description. Whilst the complainant's CV reflected seven years of professional experience, this experience was not wholly in the fields specified in the job description. The complainant's statement that the EIB had not kept a copy of his CV was unfounded(2).

The job description had required very good command or a sound grasp of French. It appeared from the complainant's CV that he did not possess any knowledge of the French language. The requirement of particular language skills was not illegal and was common to recruitment procedures of all EU institutions and bodies. It was also in full conformity with the principles developed by the case-law of the Community courts.

In response to the complainant's question, raised in his e-mail of 12 July 2004, as to which "legal authority" he could contact in case the EIB's reply to his e-mail would be deemed to be unsatisfactory, the EIB had, in its letter of 21 July 2004, informed the complainant that he had the right of seeking redress before the European Court of Justice. This answer had been given to the complainant in consideration of a well-specified question raised by him. This interpretation was also confirmed by the fact that the complainant had concluded a telephone conversation with Mr U. some days afterwards with the words "see you in the Court". The EIB's answer had been based on the consideration that the European Ombudsman, acting as a mediator, could offer citizens a choice of remedies, with characteristics and advantages different from typical legal remedies given by a court, as his recommendations were not legally binding on the institution or body concerned. In any case, the possibility for citizens to address complaints to the Ombudsman was clearly stated in various documents published on the EIB's website (like its Code of Good Administrative Behaviour for the Staff of the EIB in its relations with the Public). The complainant had had full access to this information, and had effectively used it by lodging a complaint with the Ombudsman. This showed that the complainant had been well informed about this possibility and that he had not suffered any harm from the fact that the EIB had not mentioned it.

The EIB therefore took the view that no maladministration had occurred.

The complainant's observations

In his observations, the complainant maintained his complaint and made the following further comments:

Even if his first name had been entered as his last name, the EIB should have been able to respond to the application in a timely manner. Given that the EIB claimed that negative responses had been sent to other candidates at the same time as it had written to him, the EIB should have submitted copies of such letters, together with proof that these candidates had applied for the same post.

With regard to professional experience, all the EIB had done was to say that his professional experience was not relevant. The EIB should explain exactly why his experience was irrelevant on the basis of the job description.

The EIB should show why the French language was relevant for this particular position. The reasoning put forward by the EIB did not prove that the EIB did not discriminate against persons who did not speak French.

The French language requirement had also been applied to a very similar post that had been advertised by the EIB some months ago and for which he had applied. He had never received a response for that application, either.

The job description had required "very good command of English and/or French". This meant that a candidate needed to have very good command of English or of French.

The EIB had at its disposal an entire legal team (paid by the European taxpayer) helping it draft its response. In order for this to be a battle between equals, the Ombudsman's advice was sought as to how he could be afforded with the same resources.

The complainant concluded by saying that he would appreciate it if the Ombudsman could keep the correspondence confidential and not inform the EIB of the identity of the employer for which he was now working.

Further inquiries
Request for further information

In the light of the complainant's observations, it appeared that further information was necessary in order to enable the Ombudsman to deal with the complaint. The Ombudsman therefore requested the EIB to specify why a very good command or a sound knowledge of the French language was necessary for the position for which the complainant had applied.

In the light of the request made by the complainant in his observations, the Ombudsman further decided that the complaint (which had originally not been confidential) should be considered confidential from that point onwards.

In accordance with his usual procedure, a copy of the complainant's observations was forwarded to the institution together with the request for further information. Given that the complainant had asked the Ombudsman not to disclose the identity of his new employer to the EIB (which was mentioned in the last paragraph of the observations), the Ombudsman forwarded to the EIB a copy of the observations that did not show this data. The EIB was informed accordingly.

The EIB's reply

In its reply, the EIB explained that "the working languages used on a daily basis in the Bank are English and French", as established in the Bank's General Office Procedures Manual, Rules and Procedures for all the EIB Staff. According to the EIB, both languages were normally essential for the good performance of the daily work. The EIB added that the complainant had applied for a co-ordination post in the Finance Directorate, for which this requirement was even more essential in order to carry out the duties inherent in the post, which included research on markets based on published sources, and contacts with relevant public and private institutions and bank counterparties of the French-speaking world.

The complainant's observations

In his observations, the complainant maintained his complaint. He submitted that English was the prevalent language in a far greater number of countries than French. The complainant also pointed out that English (and not French) was perceived as the business language in most of the multilingual world.

The complainant also asked the Ombudsman's permission to make the correspondence relating to this case available to members of the British parliament.

THE DECISION

1 Introductory remarks

1.1 The present complaint concerns an application for a position as Financial Analyst (reference FI04WWW03) that had been advertised by the European Investment Bank (EIB).

1.2 In his complaint, the complainant had not asked for confidentiality. However, in his observations on the EIB's opinion the complainant noted that he would appreciate it if the Ombudsman could keep the correspondence confidential. The Ombudsman has therefore decided that the complaint should be considered as being confidential in nature. This decision was taken with the sole purpose of complying with the complainant's request so as to protect his interests. The complainant remains free, therefore, to waive this protection and make the correspondence available to third parties if he so wishes. The Ombudsman will however continue to treat the complaint as being confidential for the purpose of dealing with possible requests for access to the documents in his possession.

1.3 In his observations on the EIB's opinion, the complainant pointed out that the EIB had an entire legal team (paid by the European taxpayer) at its disposal in order to help it draft its response. In order for this to be a battle between equals, the complainant sought the Ombudsman's advice as to how he could be afforded with the same resources. It should be noted that the Ombudsman acts in complete independence and that he has the possibility to ask the administration for all information and explanations that he may need to deal with a complaint, if necessary on his own initiative. The fact that a complainant does not have specialised lawyers at his disposal should therefore not result in any disadvantage for a complainant.

1.4 In his observations, the complainant stated that he had applied for a very similar post at the EIB some months ago without receiving any response for that application. In the absence of any more specific information as to the date on which this post was published and its precise reference, the Ombudsman is unable to examine this aspect of the complaint. The complainant is however free to submit a new complaint to the Ombudsman concerning this issue.

2 Alleged failure to handle and evaluate application properly

2.1 The complainant submitted his application online on 16 May 2004. On 2 July 2004, and in the absence of a reply, the complainant decided to contact the EIB in order to inquire about the outcome of his application. According to the complainant, it took him six expensive telephone calls to be able to talk to someone at the EIB's Human Resources department. He was told that the application could not be found. Still according to the complainant, after some searching it was discovered that the application had been registered using his first name as the surname. The complainant further submitted that he was told that the EIB did not have a copy of his Curriculum Vitae (CV) and that he would be informed as to the outcome of his application. On 9 July 2004, the complainant was informed in a standard letter sent by Mr. U. of the EIB that his application had been unsuccessful. The complainant submitted that this letter had been prompted by his inquiry of 2 July 2004. He further queried how the EIB had been able to evaluate his application against the job description if it did not have a copy of his CV. In his reply of 21 July 2004, Mr U. informed the complainant of the reasons as to why his application had not been short-listed. The complainant expressed the view that Mr U. had never seen a copy of his CV and had fudged the reasons for not short-listing his application, as his colleagues had misplaced his (the complainant's) application and had never given it serious consideration. He thus alleged that the EIB had failed properly to handle and to evaluate his application.

2.2 In its opinion, the EIB submitted that online applicants were responsible for correctly entering data which was directly introduced in the EIB's application receipt system. According to the EIB, the complainant had entered his first name in the box intended for his last name. As a result, the EIB's systems had automatically logged the complainant's application under his forename. The EIB's Human Resources department had therefore been unable to trace the application when the complainant had telephoned on 2 July 2004. The EIB's staff had subsequently corrected the mistake made by the complainant. According to the EIB, this had however not at all interfered with the process of examining the application. The EIB submitted that because of the large number of applications, its recruitment procedures usually took some months to complete. In this particular case, the negative response had been sent to the complainant on 9 July 2004, at the same time at which other candidates had also received negative responses for the same position. According to the EIB, the negative response had not been in connection with the complainant's telephone inquiry of 2 July 2004. The EIB further submitted that the complainant's statement that it had not kept a copy of his CV was unfounded.

2.3 In his observations on the EIB's opinion, the complainant stated that even if his first name had been entered as his last name, the EIB should have been able to respond to the application within a timely manner. Given that the EIB claimed that negative responses had been sent to other candidates at the same time when it had written to him, the EIB should in his view have submitted copies of such letters, together with proof that these candidates had applied for the same post.

2.4 The Ombudsman notes that the present allegation concerns the procedural aspects of the EIB's handling of the application lodged by the complainant. The question as to whether the rejection of this application was well-founded is the subject of the second allegation (see point 3 below).

2.5 The Ombudsman notes that the evidence submitted by the EIB appears to confirm that the complainant erroneously entered his first name in the box intended for his last name. In these circumstances, the EIB's explanation that it had therefore been unable to trace the application when the complainant had telephoned on 2 July 2004 is reasonable. The Ombudsman further notes that the EIB informed the complainant on 9 July 2004, that is to say less than two months after the application had been lodged, that the latter had been unsuccessful. In view of the considerable number of applications that the EIB appears to have received, the period of time that the EIB took in order to evaluate the application does not appear to be excessive. In these circumstances, the Ombudsman considers that there is no need to ask the EIB to submit copies of letters rejecting other applications for the same post.

2.6 The Ombudsman further notes that when, by his e-mail of 12 July 2004, the complainant queried the decision taken by the EIB, the latter replied by letter of 21 July 2004, setting out the reasons why the complainant's application had been unsuccessful. The EIB would thus appear to have reacted promptly to the complainant's query.

2.7 As regards the complainant's submission that the EIB had failed to keep a copy of his CV, the Ombudsman notes that the EIB has contested this point and submitted evidence to show that it had registered and kept this CV. The Ombudsman further notes that in his letter of 21 July 2004 (a copy of which was submitted by the EIB), Mr U. expressly referred to the complainant's CV.

2.8 In these circumstances, the Ombudsman considers that the complainant has not established that there was maladministration as regards his first allegation.

3 As to the reasons for rejecting the application

3.1 In its letter of 21 July 2004, the EIB mentioned two reasons as to why the complainant’s application had not been short-listed, namely (a) the lack of the minimum of five years of professional expertise in the fields of financial and capital markets, bank management techniques and asset/liability management as required for this position and (b) the fact that it did not appear from his CV that the complainant possessed a "very good command or a sound grasp of French". The complainant alleged that he did have the professional experience that had been required. He also expressed the view that the EIB as an EU institution was not allowed to discriminate against persons who did not speak French.

3.2 In its opinion, the EIB submitted that its position had been correct. The EIB stressed that whilst the complainant's CV reflected seven years of professional experience, this experience was not wholly in the fields specified in the job description. It further submitted that the job description had required very good command or a sound grasp of French and that it appeared from the complainant's CV that he did not possess any knowledge of the French language. The EIB took the view that the requirement of particular language skills was not illegal and was common to recruitment procedures of all EU institutions and bodies. According to the EIB, this requirement was also in full conformity with the principles developed by the case-law of the Community courts.

3.3 In his observations, the complainant maintained his position. He submitted that the job description had required "very good command of English and/or French" and that this meant that a candidate needed to have very good command of English or of French. The complainant also claimed that the EIB had to show why the French language should be relevant for this particular position.

3.4 The Ombudsman notes that the complainant's argument that a very good command of English was sufficient for the relevant post appears to be based on a misunderstanding of the passage laying down the linguistic requirements. This passage is worded as follows: "Very good command of English and/or French and sound grasp of the other language. (...)". It is thus clear that what was required was a very good command of one of the languages mentioned here and a sound grasp of the other language.

3.5 In its reply to a question to that effect put to it by the Ombudsman, the EIB explained that "the working languages used on a daily basis in the Bank are English and French", as established in the Bank's General Office Procedures Manual, Rules and Procedures for all the EIB Staff. According to the EIB, both languages were normally essential for the good performance of the daily work.

3.6 The Ombudsman considers that, within the limits imposed by Community law, the decision as to which language (or languages) is (or are) to be used as working language(s) should be left to the Community institution or body concerned. It is clear that effective internal communications within a Community institution or body, and thus the proper functioning of the institution or body concerned, would be rendered extremely difficult, if not impossible, without a decision on the language to be used for internal communications. In order to ensure effective communications within an institution or body, determining one language as the common working language would be sufficient. However, it does not appear excluded that an institution or body may choose more languages than one to serve as working languages, where there are good reasons for doing so. It appears that the EIB has chosen English and French as working languages. It should however be noted that in an opinion delivered recently(3), Advocate-General Poiares Maduro expressed the view that in such cases the requirement of being able to maintain efficient internal communications does not as such entitle an institution or body to require candidates to possess a knowledge of all the working languages. As the Advocate-General noted, command of a single common language would appear sufficient in order to ensure good communication within the organisation, provided that all employees master that language(4). The Ombudsman finds this argument persuasive.

3.7 It should however be noted that the EIB has justified the requirement of a knowledge of both English and French not only by reference to the fact that it uses both languages as internal working languages, but also by reference to the relevant post as such. In this context, the EIB pointed out that the complainant had applied for a co-ordination post in the Finance Directorate, for which this requirement was even more essential in order to carry out the duties inherent in the post, which included research on markets based on published sources, and contacts with relevant public and private institutions and bank counterparties of the French-speaking world. In the light of these explanations, the Ombudsman considers that the EIB's insistence that candidates for the relevant post should have a knowledge of both English and French does not appear to be unreasonable.

3.8 The Ombudsman notes that the complainant did not dispute the EIB's argument that it appeared from the complainant's CV that he did not possess any knowledge of the French language. Given that the complainant did thus not fulfil one of the conditions attached to the relevant post, the EIB's decision to reject his application appears to be correct. The Ombudsman therefore does not consider it necessary to examine whether the EIB was also correct in holding that the complainant did not fulfil the requirement of possessing at least five years of relevant professional experience. As a matter of fact, even if the EIB's assessment regarding this point should have been incorrect, the decision to reject the complainant's application would still be legitimate, given that the latter did not possess the requisite language skills.

3.9 In these circumstances, there appears to have been no maladministration as regards the second allegation submitted by the complainant.

4 Failure to provide complete information as to the possibilities of seeking redress

4.1 The complainant noted that when he had asked where he could complain against the treatment he had received, he had been told that he could contact the European Court of Justice. In the complainant's view, the EIB should also have mentioned the possibility to complain to the Ombudsman. The complainant therefore alleged that the EIB had failed to provide complete information as to the possibilities of seeking redress.

4.2 The EIB replied that the above-mentioned answer had been given to the complainant in consideration of a well-specified question raised by him. According to the EIB, this interpretation was also confirmed by the fact that the complainant had concluded a telephone conversation with Mr U. some days afterwards with the words "see you in the Court". The EIB also stressed that the possibility for citizens to address complaints to the Ombudsman was in any event clearly stated in various documents published on the EIB's website, that the complainant had had full access to this information and that he had effectively used it by lodging a complaint with the Ombudsman. According to the EIB, this showed that the complainant had been well informed about this possibility and that he had not suffered any harm from the fact that the EIB had not mentioned it.

4.3 The Ombudsman considers that it would indeed have been better if the EIB had also expressly referred the complainant to the possibility of complaining to the Ombudsman. However, given that the complainant has nevertheless been able to lodge a complaint to him, the Ombudsman considers that there are no grounds for further inquiries concerning this aspect of the complaint.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Investment Bank. The Ombudsman therefore closes the case.

The President of the European Investment Bank will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) A document submitted by the EIB with its opinion (a copy of the registration of this copy in its application receipt system) suggests that the application may already have been lodged on 13 May 2004. This point would however appear not to have any relevance for the present inquiry.

(2) Together with its opinion, the EIB submitted a copy of the CV and a copy of the registration of this copy in its application receipt system.

(3) Opinion of 16 December 2004 in Case C-160/03 Spain v Commission.

(4) Loc. cit., paragraph 56.