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Decision of the European Ombudsman closing his own-initiative inquiry OI/1/2010/(BEH)MMN concerning EUPOL COPPS

The background to the inquiry

1. The case concerns the rejection of an application for a post as an IT manager for the European Union Police Mission for the Palestinian Territories ('EUPOL COPPS').

2. EUPOL COPPS was set up by Joint Action 2005/797/CFSP on the European Union Police Mission for the Palestinian Territories. This Joint Action was adopted by the Council of the European Union (the 'Council') on 14 November 2005 and amended by Council Decision 2010/784/CFSP of 17 December 2010. The EUPOL COPPS mission aims at providing support to the Palestinian Authority to establish sustainable and effective policing arrangements. EUPOL COPPS was initially established for a period of three years. However, the Council subsequently decided to extend its mandate until at least 31 December 2011.

3. According to the above-mentioned rules, the Council decides on the objectives and the duration of the mission. The Council's Political and Security Committee ('PSC') provides political control and strategic direction to EUPOL COPPS, under the responsibility of the Council and the High Representative of the EU for Foreign Affairs and Security Policy (the 'High Representative'). Under the political control and strategic direction of the PSC and the overall authority of the High Representative, a Civilian Operation Commander exercises command and control of EUPOL COPPS at the strategic level. A Head of Mission is appointed by the PSC upon a proposal by the High Representative. The Head of Mission assumes responsibility and exercises command at the operational level. The Council establishes the budget of EUPOL COPPS, which is managed in accordance with the rules and procedures applicable to the general budget of the EU.

4. EUPOL COPPS staff may be seconded by EU Member States or EU institutions, in which case the Member State or institution in question will bear the costs related to the staff seconded. Moreover, EUPOL COPPS may recruit international and local staff on a contractual basis, as required.

5. Countries that are not Member States of the EU may be invited to participate in EUPOL COPPS, provided that they bear the cost of the staff seconded by them. The High Representative may negotiate on behalf of the EU agreements establishing detailed arrangements regarding the participation of such third countries. Norway is among the contributing third countries.

6. In April 2009, a Norwegian citizen[1] applied for a position as an IT manager at EUPOL COPPS. He was included in a short-list and had a telephone interview with three members of staff of EUPOL COPPS.

7. On 24 June 2009, EUPOL COPPS informed the applicant that his application was unsuccessful.

8. On the same date, the applicant sent an e-mail to EUPOL COPPS' Head of the Human Resources Department in which he conveyed his best wishes to EUPOL COPPS in relation to the selected applicant. Moreover, he inquired about the status of his "administrative issues" as a Norwegian applicant since he had found another potentially interesting vacancy with the EU.

9. On 25 June 2009, the Head of the Human Resources Department informed the applicant that EUPOL COPPS had not been able to select any candidate. She added that, although the applicant was an excellent candidate, he was not selected due to the fact that he did not have an EU security clearance.

10. On 17 September 2009, the applicant lodged a complaint with the Ombudsman alleging that the Council failed to comply with the vacancy notice for the post in question. In particular, the complainant argued that EUPOL COPPS' website stated the following: "These posts require security clearance allowing access to classified documents (level SECRET EU). Already having such clearance would be an advantage. Otherwise, those applying for the post will be understood to be prepared to undergo security screening under Council Decision No 264/01 of 19 March 2001". The applicant added that he had indicated in the application form that he did not have such clearance. Moreover, according to the applicant, he was told during the interview that it should not be a problem for him to obtain the security clearance in view of his past work experience. In the complainant's view, refusing to offer him the post on the grounds that he did not have the EU security clearance, without even starting a security screening concerning him, was therefore wrong.

11. On 21 September 2009, following a request from the Ombudsman's services, the complainant provided a copy of certain e-mails exchanged between EUPOL COPPS and himself. On 22 September 2009, the complainant clarified one aspect of his complaint.

12. On 6 October 2009, the Ombudsman informed the complainant that Article 195 of the Treaty establishing the European Community ('EC Treaty'; now Article 228 of the Treaty on the Functioning of the European Union - 'TFEU') empowers him to deal with complaints from EU citizens and from third-country nationals resident in the EU. The Ombudsman noted that the complainant did not appear to fall within either of these categories, since he was a Norwegian national and was not residing in the EU. He was therefore unable to deal with the complainant's complaint.

13. The Ombudsman added, however, that the EC Treaty empowered him to conduct inquiries on his own initiative for which he finds grounds. As regards the present case, the Ombudsman pointed out that it appeared that the complainant had so far only contacted the Council's Public Information Service. The Ombudsman therefore advised him to address the Council itself and request its formal position before eventually turning again to the Ombudsman. In that case, the Ombudsman would then decide, in view of the Council's formal position, whether there were sufficient grounds to justify an own-initiative inquiry in relation to this case.

14. Also on 6 October 2009, the complainant informed the Ombudsman's services that on 24 September, he had received an e-mail from the Council's Public Information Service requesting him to contact the Head of Mission of EUPOL COPPS in relation to this matter. He added that on 25 September, he contacted EUPOL COPPS' Head of Mission and that he received an unsatisfactory reply some days later.

15. On 10 October 2009, the complainant forwarded to the Ombudsman a copy of his letter to EUPOL COPPS' Head of Mission of 25 September 2009 and a copy of the reply of the Head of Mission of 30 September 2009. In this reply, the Head of Mission indicated that, since the IT manager would have access to sensitive information, the security clearance was essential for this post. He added that obtaining such clearance for nationals of non-Member States is only undertaken in cases of operational necessity. In view of this, the Head of Mission concluded that the complainant should not have been invited to attend an interview and apologised for the inconvenience.

16. On 28 October 2009, the Ombudsman again advised the complainant to contact the Council itself through its Secretariat-General.

17. On 23 November 2009, the complainant informed the Ombudsman that a new vacancy notice had been published for the position for which he had unsuccessfully applied. The complainant noted that the conditions had been amended so that nationals of third countries contributing to EUPOL COPPS could not apply. Moreover, the complainant provided the Ombudsman with a copy of a letter the Council had addressed to him on 11 November 2009. In this letter, the Council indicated that the responsibility to recruit staff lay with EUPOL COPPS' Head of Mission. Thus, the Council invited the complainant to address his complaint to the Head of Mission of EUPOL COPPS.

The subject matter of the inquiry

18. It appears that the complainant intended to submit the following allegation and claim, which were included in the Ombudsman's own-initiative inquiry:

Allegation

By rejecting his application for the post of IT manager on the grounds that he did not have an EU security clearance and/or was not a national of an EU Member State, EUPOL COPPS: (i) failed to comply with the relevant rules, as published on its website; and (ii) discriminated against the complainant on the grounds of his nationality.

Claim

EUPOL COPPS should initiate a security clearance procedure in relation to the complainant and consider his application for the vacant post.

The inquiry

19. On 12 January 2010, the Ombudsman opened an own-initiative inquiry concerning EUPOL COPPS. Given that the latter had been established by the Council, a copy of the letter opening the inquiry was sent to the Council.

20. On 15 April 2010, EUPOL COPPS sent its opinion to the Ombudsman.

21. On 14 June 2010, the complainant submitted his observations on EUPOL COPPS' opinion.

22. On 24 November 2010, the Ombudsman asked EUPOL COPPS to answer additional questions and informed the complainant of these further inquiries.

23. On 3 January 2011, the Ombudsman received EUPOL COPPS's second opinion, which was forwarded to the complainant for his observations.

24. On 16 February 2011, the complainant submitted his observations concerning EUPOL COPPS' second opinion.

The Ombudsman's analysis and conclusions

Preliminary remarks

25. As a preliminary matter, EUPOL COPPS expressed certain concerns regarding the admissibility of the Ombudsman's own-initiative inquiry. In this respect, EUPOL COPPS submitted the following arguments. First, since the complainant was neither an EU national nor resident in the EU, he could not lodge a complaint with the Ombudsman. Second, EUPOL COPPS was an operational activity of the EU without legal personality. Third, EUPOL COPPS was not one of the entities with regard to which the Ombudsman was competent to open an inquiry pursuant to the TFEU. Fourth, EUPOL COPPS' decisions relating to the recruitment of contract staff fell within the discretionary powers that EU Member States had entrusted to the Head of Mission. Fifth, opening an own-initiative inquiry in these circumstances would amount to circumventing the principle of attributed competences established in the EU Treaty. However, as a sign of good will and transparency, EUPOL COPPS provided its opinion on the substance of the case.

26. The Ombudsman considers it appropriate to commend EUPOL COPPS for the constructive approach that it has adopted in the present case by providing an opinion on the substance of the case notwithstanding its doubts as regards the legitimacy of this inquiry.

27. As regards the doubts expressed by EUPOL COPPS, the following explanations will be useful.

28. Article 228(1) TFEU establishes that the Ombudsman "shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them. In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him [...]".

29. As regards the first argument put forward by EUPOL COPPS, it should be noted that Article 228(1) TFEU does not limit the Ombudsman's power to open own-initiative inquiries to cases concerning authorised complainants, that is to say, EU citizens and natural and legal persons residing or having their registered office in a Member State. The Ombudsman can open such an inquiry whenever he considers that there could be maladministration in the activities of the Union institutions, bodies, offices or agencies. This means that he may open own-initiative inquiries also in relation to cases submitted to him by non-authorised complainants (i.e., persons who do not fall within the above-mentioned category of authorised complainants). The Ombudsman has already carried out a number of inquiries concerning grievances raised by third-country nationals who do not live in the EU. In such cases, the Ombudsman rejects the complaint submitted to him whilst opening an inquiry of his own initiative. This is precisely what he did in the present case. The first argument raised by EUPOL COPPS is therefore not valid.

30. In relation to the second argument put forward by EUPOL COPPS, according to which the latter does not have legal personality, it is sufficient to note that the Ombudsman is empowered to investigate instances of maladministration committed by Union institutions, bodies, offices or agencies, without there being any need for these entities to have legal personality.

31. As regards the third argument concerning the Ombudsman's alleged lack of competence to open an inquiry directed at EUPOL COPPS, the Ombudsman makes the following findings.

32. First, Article 28(1) of the pre-Lisbon EU Treaty did indeed provide that the European Ombudsman's mandate should not extend to the so-called 'second pillar' (i.e., the area of Common Foreign and Security Policy). However, whereas Article 28 of the pre-Lisbon EU Treaty has become Article 41 of the EU Treaty, as amended by the Treaty of Lisbon, Article 28(1) has not been retained. Moreover, there are no other Treaty provisions limiting the Ombudsman's review in relation to bodies, such as EUPOL COPPS, set up under the former second pillar.

33. Second, EUPOL COPPS was established by a Joint Action adopted by the Council; that is to say, an EU institution. Given that the Council itself falls within the Ombudsman's mandate, it is logical to assume that the same must hold true for any entities set up by the Council.

34. Third, in its letter of 11 November 2009, the Council informed the complainant that the responsibility to recruit staff lay with the EUPOL COPPS' Head of Mission and that he should therefore address his complaint to the latter. It thus appears that the Council does not consider itself competent to deal with matters such as the one raised by the complainant.

35. Fourth, it is worth mentioning that, on 17 December 2010, the Ombudsman opened an own-initiative inquiry (OI/12/2010/(BEH)MMN) in order to clarify, as a matter of principle, who takes responsibility for possible instances of maladministration in the activities of Missions under the auspices of the EU Common Security and Defence Policy ('CSDP'). Thus, on this date, the Ombudsman asked the Council and the Commission to provide their opinion on this issue.

36. On 11 April 2011, the Council informed the Ombudsman that it had transmitted his letter to the High Representative of the EU, Mrs Ashton, who is competent in matters concerning the CSDP.

37. On 10 May 2011, the High Representative of the EU provided her opinion on behalf of the Council. The High Representative expressed the view that the Head of Mission is under the supervision of the Commission, as regards staff issues also. Moreover, she indicated that, in her opinion, the Missions themselves could not be held accountable for possible instances of maladministration since they do not fall within the category of "bodies, offices or agencies" whose acts are subject to review by the Court of Justice (Article 263 TFEU). It can be deduced from the High Representative's opinion that she did not regard her services as responsible for examining and, if needs be, redressing possible instances of maladministration committed by the Missions.

38. On 8 June 2011, the High Representative of the EU provided an opinion on behalf of the Commission, in which she indicated that the Commission's supervisory responsibilities over Heads of Mission are limited to issues concerning the management of the budget.

39. In view of the above, it appears that neither the Council, nor the Commission, nor the High Representative consider themselves to be in a position to deal with complaints concerning maladministration on the part of the Missions. The Ombudsman considers that this is a very unsatisfactory state of affairs, and he will endeavour, in the framework of his ongoing own-initiative inquiry OI/12/2010/(BEH)MMN, to find a solution that is both appropriate and practicable for future cases concerning Missions. It may, however, be useful to point out at this stage that the Ombudsman's mandate is determined by the TFEU without reference to the competences of the Court of Justice. The fact that the latter might not be in a position to deal with actions against Missions does not thus mean that the latter's administrative behaviour cannot be the subject of inquiries by the Ombudsman. As regards the present own-initiative inquiry, the Ombudsman considers it appropriate to direct his conclusions at EUPOL COPPS, without prejudice to the outcome and general conclusions in OI/12/2010/(BEH)MMN.

40. As regards the fourth argument put forward by EUPOL COPPS, according to which its Head of Mission has been entrusted with discretionary powers, the Ombudsman acknowledges that this is indeed the case. However, the fact that the appointing authority enjoys a wide margin of discretion in such matters does not mean that it may not commit maladministration if it exceeds the boundaries of such discretionary powers.

41. In view of the foregoing, the Ombudsman concludes that he has competence to conduct an own-initiative inquiry into the present case. Therefore, the fifth and last argument submitted by EUPOL COPPS, according to which the opening of an own-initiative inquiry in the present case would amount to circumventing the principle of attributed competences established in Article 5(2) of the EU Treaty, is clearly unfounded.

Allegation of failure to comply with the relevant rules as published and discrimination on the grounds of nationality and related claim

Arguments presented to the Ombudsman

42. The complainant alleged that EUPOL COPPS: (i) failed to comply with the rules established in the vacancy notice concerning an IT manager post which it published on its website; and (ii) discriminated against him on the grounds of his Norwegian nationality.

43. In essence, the complainant argued, first, that the vacancy notice established that applicants should be nationals of an EU Member State or nationals of a third country which contributed to EUPOL COPPS. The complainant provided copies of the vacancy notices of February 2009, April 2009 (i.e., the vacancy notice relevant for the complainant's application) and November 2009 for the post in question. He noted that the vacancy notices of February 2009 and April 2009 provided that each applicant needed to be a "[c]itizen of a Member State of the European Union (EU) and enjoying full rights as a citizen or a citizen of a Third State invited to contribute to the EUPOL COPPS." The complainant submitted that he fulfilled this condition as he was a Norwegian national and Norway was a contributor to EUPOL COPPS. In contrast, the complainant noted that the vacancy notice of November 2009 established the following in relation to the citizenship requirements: "Vacancy open only to citizens of the Member States of the EU".

44. Second, as regards the security clearance, the vacancy notices of February 2009 and April 2009 stipulated that applicants needed "[t]o have or obtain a national security clearance 'EU SECRET' level or equivalent". Moreover, according to the complainant, EUPOL COPPS's website indicated the following: "These posts require security clearance allowing access to classified documents (level SECRET EU). Already having such clearance would be an advantage. Otherwise, those applying for the post will be understood to be prepared to undergo security screening under Council Decision No 264/01 of 19 March 2001". The vacancy notice of November 2009 established the following: "The selected candidate will have to be in possession of the necessary level of security clearance (EU SECRET or equivalent) when deployed".

45. The complainant indicated that he did not have such security clearance and that this had been made clear in his application form as well as during his interview with EUPOL COPPS. The complainant added that he was told during the interview that it would not be a problem for him to obtain the security clearance in view of his professional background. However, the complainant noted that the Head of the Human Resources Department informed him in an e-mail of 25 June 2009 that, although he was an excellent candidate, he was not selected due to the fact that he did not have the security clearance.

46. In view of the foregoing, the complainant concluded that, by rejecting his application, EUPOL COPPS failed to comply with the relevant rules which it published.

47. In its letter to the complainant of 30 September 2009, EUPOL COPPS indicated that a general condition of employment with the EU is that the staff member must be a national of an EU Member State. According to EUPOL COPPS, this requirement can be waived only in exceptional circumstances. It added that the security clearance is essential for the IT manager post in question since the person filling this post will have access to sensitive information. EUPOL COPPS further indicated that the security clearance screening process can be initiated in relation to nationals of a third State only in cases of "operational necessity". In view of this, EUPOL COPPS concluded that the complainant should not have been called for an interview.

48. In his letter of 2 October 2009 to EUPOL COPPS, the complainant submitted that he had been discriminated against on the grounds of his Norwegian nationality.

49. In its opinion concerning the Ombudsman's own-initiative inquiry, EUPOL COPPS indicated that the staff of missions such as EUPOL COPPS consists primarily of staff seconded by EU Member States and only exceptionally may staff be recruited on a contractual basis. According to EUPOL COPPS, although third countries which contribute to the mission may second staff, the recruitment of contract staff from third countries is a further exception. However, EUPOL COPPS recognised that citizens of third countries which contribute to the mission may be recruited as contract staff. Notwithstanding this, EUPOL COPPS submitted that all IT manager posts in similar missions are currently restricted to EU citizens. Moreover, it argued that it had made a material error when publishing the vacancy notice, which opened the IT manager post to applications by third-country nationals.

50. EUPOL COPPS further argued that, although security considerations were decisive for its rejection of the complainant's application, the complainant did not meet all the conditions required for the post. Moreover, EUPOL COPPS suggested that the e-mail sent to the complainant by the Head of the Human Resources Department (which indicated that the only reason for the rejection of the application was the lack of security clearance) was an "informal" communication which did not reflect EUPOL COPPS' position.

51. In his observations, the complainant disputed that the e-mail of the Head of the Human Resources Department could be regarded as an "informal" communication. Moreover, he expressed his dissatisfaction with EUPOL COPPS' suggestion that "he would not have been able to obtain the requisite security clearance". He considered that this statement was purely speculative. The complainant also objected to what he considered as groundless suggestions that he was not sufficiently trustworthy or did not meet all the conditions required for the post. Finally, the complainant requested that a security clearance screening should be initiated in relation to him, as promised during the interview, and claimed compensation for the moral harm caused to him (namely, time lost and the distress created).

52. In its second opinion following the Ombudsman's request for clarifications, EUPOL COPPS indicated that the provisions of the Permanent Security Agreement concluded between the EU and Norway on 22 October 2004 (the 'Permanent Security Agreement with Norway') do not impose an obligation on the EU to grant access to information classified as 'EU CONFIDENTIAL' to third-country nationals. Moreover, EUPOL COPPS suggested that it could reject the complainant's application for the IT manager post in question since this post would grant him unlimited and unconditional access to information classified as 'EU SECRET' (which is even more sensitive). EUPOL COPPS argued that access to 'EU SECRET' information is not covered by the Permanent Security Agreement with Norway. EUPOL COPPS further stated that the requirement that IT manager posts be filled with nationals of EU Member States is established in relation to all missions similar to EUPOL COPPS.

53. In relation to the Ombudsman's question concerning the security considerations taken into account and the precise conditions that the complainant did not meet, EUPOL COPPS merely stated that the complainant could still apply for other posts that may not have the limitations described above.

54. EUPOL COPPS confirmed that the IT manager post had subsequently been filled by a national of an EU Member State.

55. In his observations on EUPOL COPPS' second opinion, the complainant expressed his dissatisfaction with EUPOL COPPS' suggestions that unspecified security considerations or his alleged failure to meet certain unspecified conditions made him unsuitable for the post. The complainant noted that the Head of the Human Resources Department indicated in an e-mail of 25 June 2009 that he was an excellent candidate. He added that he had been bound by confidentiality restrictions similar to those applicable to the IT manager post in question when he worked for the Norwegian criminal investigation services. Moreover, the complainant considered it insulting that EUPOL COPPS reassured him that he could apply for other positions that may not have the limitations mentioned above.

The Ombudsman's assessment

56. The Ombudsman notes that, according to well-established case-law, "the wide latitude available to the appointing authority regarding appointment presupposes that it should carefully and impartially examine the candidates' files and have meticulous regard to the requirements laid down in the vacancy notice, so that it is required to reject any candidate who does not meet those requirements. The vacancy notice thus constitutes a legal framework which the appointing authority imposes on itself and must observe meticulously".[2]

57. It is clear from this case-law that the appointing authority cannot depart from the terms of the vacancy notice.

58. It is against this background that the EUPOL COPPS' letter of 30 September stating the reasons for the rejection of the complainant's application must be assessed. This letter stated the following: "As you are aware, a general condition of employment with the EU is that the staff member must be a citizen of a member state. Unfortunately, Norway does not meet this condition and it is only under exceptional conditions that this requirement may be waived. Furthermore, given the access that the IT Manager will have to sensitive information, security clearance is an essential part of the role. I am advised that obtaining such clearance for non-member state nationals is only undertaken in cases of operational necessity. In view of these two factors I regret that it was not possible to offer you the position."

59. Thus, this letter clearly indicated that the reasons for the rejection of the complainant's application were two-fold. First, the applicant was a third-country national. Second, he did not have the security clearance. However, it is manifest that, by basing its rejection on the complainant's application on these two reasons, EUPOL COPPS failed to observe the relevant notice of vacancy.

60. As regards the first reason, the terms of the vacancy notice of April 2009 for the IT manager post clearly indicated that nationals of third countries, such as Norway, which contribute to EUPOL COPPS could apply.

61. As regards the second reason, the Ombudsman notes that, according to the relevant vacancy notice of April 2009 and the information available on EUPOL COPPS' website, it was not necessary for a candidate to be already in possession of a security clearance at the time of applying. It appears from these documents that applicants who were not yet in possession of a security clearance would have to undergo a screening process prior to taking up the post.

62. The Ombudsman notes that EUPOL COPPS itself initially appears to have reached the same conclusion, given that it interviewed the complainant. It is true that, in its opinion, EUPOL COPPS has put forward certain additional arguments in order to justify its decision to reject the complainant's application. However, it clearly emerges from EUPOL COPPS' letter of 30 September 2009 that the relevant decision was only based on the two above-mentioned reasons, and not on the reasons put forward ex post by EUPOL COPPS. Although these further arguments are relevant for the assessment of the second allegation, they therefore do not affect the Ombudsman's conclusion as regards the first allegation.

63. In any event, the Ombudsman notes that, in its opinion, EUPOL COPPS itself admitted that a material error had been made when publishing the relevant notice of vacancy in a form that opened the post to applications from third-country nationals.

64. In view of the foregoing, the Ombudsman considers that there is no need to ascertain whether, as EUPOL COPPS suggested in its opinion, the relevant post could not have been given to the complainant, a Norwegian national, on the ground that the relevant post entailed access to classified information of a level that was not covered by the Permanent Security Agreement with Norway.

65. Article 12(3) of the European Code of Good Administrative Behaviour[3] provides that, if an error occurs which negatively affects the rights or interests of a member of the public, the official shall apologise for it and endeavour to correct the negative effects resulting from his or her error in the most expedient way. The Ombudsman is pleased to note that, in its letter of 30 September 2009, EUPOL COPPS presented an apology to the complainant, even though this apology concerns the fact that the complainant was invited for an interview and not the error concerning the contents of the notice of vacancy that EUPOL COPPS subsequently admitted to have made.

66. The Ombudsman therefore regrets that, in its submissions to the Ombudsman in the present inquiry, EUPOL COPPS suggested that there were other reasons why the relevant post could not have been given to the complainant. This suggestion is clearly incompatible with the explanations provided in EUPOL COPPS' letter to the complainant of 30 September 2009. What is more, when the Ombudsman explicitly asked EUPOL COPPS to specify which other conditions necessary for his recruitment the complainant had, in its view, failed to meet, EUPOL COPPS failed to provide any substantive answer.

67. In its opinion, EUPOL COPPS stated that "[s]ecurity considerations were central to the rejection of his candidature. However, those considerations were not limited to the question of security clearance.[...] The Head of Mission, in consultation with the Security Office, must make sure to attain the highest level of trust for staffing the Mission, especially for sensitive posts in a hostile environment. [...] As a matter of facts, [the complainant] did not meet all conditions required for the post." EUPOL COPPS also stated that "it cannot be argued that absence of requisite security clearance was the sole impediment to his candidature being accepted". It therefore appeared that the rejection of the complainant's application resulted from considerations other than the mere lack of a security clearance, namely, certain security considerations related to trust. Given that its relevant remarks could be interpreted in a way that would adversely affect the complainant's reputation, the Ombudsman invited EUPOL COPPS to specify these security considerations or clarify its remarks.

68. The Ombudsman notes the fact that, in its reply, EUPOL COPPS refrained from making any further suggestions that could be interpreted in a way that would adversely affect the complainant's reputation. He very much regrets, however, that EUPOL COPPS failed to clarify the above remarks it had made in its opinion. As mentioned below, the Ombudsman does not consider it appropriate to include the complainant's claim for compensation in the present inquiry. In the Ombudsman's view, EUPOL COPPS would nevertheless be well-advised to write to the complainant in order to confirm that it did not intend to call his trustworthiness into question.

69. In view of the foregoing, the Ombudsman concludes that the complainant's first allegation is well-founded and that, therefore, EUPOL COPPS committed an instance of maladministration.

70. As regards the second allegation, it needs to be assessed whether the rejection of the complainant's application by EUPOL COPPS constituted discrimination on the grounds of nationality.

71. The Ombudsman considers that the evidence in the file indicates that, at some point after the publication of the relevant vacancy notice, EUPOL COPPS decided to change the conditions of recruitment for the IT manager post and to restrict applications to nationals of EU Member States.

72. Therefore, it should be considered whether EUPOL COPPS was entitled to proceed to such a change. In this respect, it is convenient to recall that the institutions, bodies, offices and agencies of the EU enjoy a wide margin of discretion as regards the conditions they wish to set for recruiting staff. In so far as the complainant's allegation is concerned, it should be noted that, according to settled case-law, the general principle of equal treatment and non-discrimination requires that comparable situations are not treated differently unless differentiation is objectively justified.[4]

73. Having carefully reviewed the legal provisions underlying the work of EUPOL COPPS, the Ombudsman is not convinced that the latter was under a legal obligation to treat third-country nationals in the same way as EU nationals as regards the possibility to apply for positions as international contract staff.

74. In view of the foregoing, the Ombudsman concludes that EUPOL COPPS did not exceed the margins of its discretion by considering that the IT manager post is a sensitive post which should be restricted to nationals of EU Member States.

75. For this reason, the Ombudsman concludes that the complainant's second allegation should be rejected as unfounded.

76. The complainant claimed that EUPOL COPPS should initiate a security clearance procedure in relation to him and consider his application for the vacant post.

77. The Ombudsman understands this claim as meaning that the security clearance procedure should be initiated with a view to making it possible to recruit him for the post of IT manager. However, given that the Ombudsman has reached the conclusion that EUPOL COPPS was entitled to restrict the IT manager post to nationals of EU Member States, the complainant's claim must fail.

78. Finally, it should be noted that, in the course of the present inquiry, the complainant put forward a claim for compensation. The Ombudsman considers that there is no need to include this claim in his present own-initiative inquiry, which, although it arose from the complainant's case, is essentially conducted in the public interest.

Conclusion

On the basis of his inquiry into this case, the Ombudsman closes it with the following critical remark:

EUPOL COPPS committed an instance of maladministration by failing to comply with the conditions it had laid down in its vacancy notice of April 2009 concerning an IT manager post.

The complainant, EUPOL COPPS and the Council will be informed of this decision. In view of the considerations set out in point 39 above, the Ombudsman considers it appropriate to inform the High Representative as well.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 29 November 2011


[1] For the sake of convenience, this person is referred to as 'the complainant' in this decision, even though the present inquiry was started on the Ombudsman's own initiative.

[2] Case F-39/07 Campos Valls v Council, judgment of 6 May 2009, not yet published in the ECR, paragraph 41.

[3] The Code is available on the website of the European Ombudsman.

[4] Case T-58/05 Centeno Mediavilla and Others v Commission [2007] ECR II-2523, paragraph 75.