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Decision of the European Ombudsman closing his inquiry into complaint 1120/2011/ANA against the European Chemicals Agency (ECHA)
Case 1120/2011/ANA - Opened on Monday | 27 June 2011 - Decision on Tuesday | 18 December 2012 - Institution concerned European Chemicals Agency ( No maladministration found )
The background to the complaint
1. The complainant, a Greek national, submitted an application to the European Chemicals Agency (ECHA) for the post of IT Assistant - Reporting, M/F AST4 (Ref. ECHA/TA/2011/002).
2. By letter dated 6 May 2011, ECHA informed the complainant that his application for the post could not be taken into consideration because it was found that it did not meet the formal requirements laid down in Section 2 of the vacancy notice.
3. By e-mail dated 7 May 2011, the complainant explained that he fulfilled the requirements set out in Section 2 of the vacancy notice. Specifically, he stated that he (a) is a national of an EU/EEA Member State, (b) enjoys his full rights as a citizen, (c) has fulfilled his obligations concerning military service, (d) provided the character references required, (e) is physically fit to perform the duties in question, (f) has a thorough knowledge of an EU official language and a satisfactory knowledge of another. The complainant asked ECHA to reconsider its decision in light of these considerations.
4. In its reply of 12 May 2011, ECHA explained that, based on the information provided in the complainant's curriculum vitae (CV), the Selection Board concluded that he did not possess the minimum relevant professional experience as specified in Section 2.3 of the vacancy notice. Specifically, ECHA pointed out that the vacancy notice requires at least five years of professional experience in the areas set out in Section 1 of the vacancy notice, of which at least three years need to involve practical exposure to specific tasks. ECHA noted that the complainant's experience has been considered as being relevant only from the point in time at which he had obtained the qualification set out in Section 2.2 of the vacancy notice.
5. On 18 May 2011, the complainant lodged the present complaint with the European Ombudsman.
The subject matter of the inquiry
6. The Ombudsman opened an inquiry into the complainant's allegation and claim as follows.
ECHA failed to provide valid and adequate grounds for its decision.
ECHA should take appropriate remedial action.
7. In his letter opening an inquiry, the Ombudsman asked ECHA to explain in its opinion a) which of the complainant's bachelor's degrees it took into account for the purpose of establishing the complainant's eligibility, and b) how it calculated the complainant's professional experience.
8. On 27 June 2011, the Ombudsman asked ECHA to submit an opinion on the complainant's allegation and claim. On 30 September 2011, ECHA submitted an opinion. Considering that, in its opinion, ECHA did not address the question as to which of the complainant bachelor's degrees it took into account for the purpose of establishing the complainant's eligibility, the Ombudsman requested further information from ECHA. On 22 November 2011, ECHA sent its reply to the Ombudsman's question. ECHA's opinion and its reply to the Ombudsman's request for further information were forwarded to the complainant for observations. On 1 December 2011, the complainant submitted his observations.
The Ombudsman's analysis and conclusions
9. In its opinion, ECHA argued that the complainant did not exhaust the remedy possibilities offered to applicants in ECHA selection procedures. In fact, by e-mail of 20 May 2011, ECHA informed the complainant that it would have been willing to address his requests and concerns in its internal review procedure. In support of its argument, ECHA invoked a previous decision by the Ombudsman in which he rejected a complaint on the ground that ECHA did not have sufficient time to reply to a letter the complainant in that case had addressed to it.
10. The Ombudsman notes that, in accordance with Article 2(4) of his Statute, a complaint must be preceded by appropriate administrative approaches to the institutions and bodies concerned. In the present case, while not formally submitting a request for review, the complainant, by his e-mail of 7 May 2011, contested the Selection Board's decision to consider his application ineligible and asked ECHA to reconsider that decision. In its reply of 12 May 2011, ECHA explained why the Selection Board had concluded that the complainant's application did not meet the formal requirements laid down in the vacancy notice. Given that the complainant had drawn ECHA's attention to his dissatisfaction with the Selection Board's decision, the Ombudsman considers that the complainant was not required to make a formal request for review before turning to the Ombudsman. He therefore takes the view that appropriate administrative approaches have been made in the present case. In any event, the Ombudsman notes that ECHA's letter of 12 May 2011 did not make it clear that the complainant could still make use of ECHA's internal review procedure.
A. Allegation that ECHA failed to provide valid and adequate grounds for its decision and claim that ECHA should take appropriate remedial action
Arguments presented to the Ombudsman
11. In support of his allegation, the complainant argued that ECHA failed properly to examine his CV. Moreover, ECHA did not clarify the grounds for rejecting his application. The complainant provided a detailed CV which contains information about his professional experience in the field of Systems Management, Network Engineering and IT Project Management and User Support. According to the complainant, his total experience is 13 years. His specialist experience in different fields ranges from 2 to 12 years.
12. In its reply to the Ombudsman's request for further information to determine which of the complainant's two post-secondary education degrees it took into account for the purpose of establishing the complainant's eligibility, ECHA explained that, if the complainant's 'Bachelor of Science' obtained in 2006 had been considered relevant, the complainant would not have been able to show that he had the necessary number of years of professional experience. Consequently, the Selection Board examined whether the complainant's 'Ptychion' obtained in 2001 could be accepted as an 'IT Diploma' and, in spite of certain reservations, it decided to assess this case in favour of the applicant.
13. In its opinion, ECHA provided an outline of the job profile sought through the call for the post of an IT Assistant - Reporting. It noted that the members of the reporting team work in a highly specialised area of Information Technology, using their own tailor-made applications and tools for which substantive experience and knowledge is of the essence. In brief, ECHA explained that IT reporting describes the process of extracting and putting into context certain pieces of information and data from large databases. ECHA therefore needs experts capable of efficiently handling the vast amount of data submitted by companies registering chemical substances, which is essential for managing ECHA's various regulatory tasks.
14. Accordingly, Section 2.3 of the vacancy notice set two requirements with respect to professional experience: 1) at least five years in the areas set out in section 1 of the vacancy notice and 2) at least three years of this experience with practical exposure to specific tasks.
15. ECHA pointed out that the complainant does not consider himself as an expert in the task of IT reporting. Instead, in his CV, he listed a number of other IT-related tasks such as system manager, network engineer, user support (helpdesk) and project management. ECHA noted that none of these are relevant for the job profile put forward by the vacancy notice.
16. ECHA added that the complainant's CV mentions reporting only twice, both times in a completely different context and meaning compared to the specific job profile. In fact, 'progress reporting' contained on page 5 and 'evaluation report productions' on page 9 of the complainant's CV do not refer to the specific applications put forward in Section 1 of the vacancy notice. Even if the Selection Board were to accept the work experience with regard to the reference to 'reporting' in the CV, this would only account for one year and four months, which is less than the required five years. Furthermore, ECHA pointed out that none of the tasks contained in Section 1 of the vacancy notice are mentioned in the complainant's CV.
17. Moreover, with respect to exposure to specific tasks, ECHA underlined that the Selection Board acknowledged that the complainant demonstrated his experience with the Oracle database, which, however, is one of the four criteria set out in Section 2.3 of the vacancy notice. This was not considered to be sufficient to substitute for the complainant's lack of professional experience in the other work tasks set therein.
18. In view of these considerations, the Selection Board found that, based on the information contained in the submitted CV, the complainant's professional experience does not meet the requirements of the job profile and decided not to admit him to the next phase of the selection procedure.
19. In his observations, the complainant expressed his dissatisfaction with ECHA's arguments. He referred to the CV that he enclosed with his application and provided details of his professional experience from 1998 to 2011. He added that, in parallel to salaried posts, he had been working as a self-employed computer and network engineer since 1 March 2006. Moreover, he argued that he participated in international conferences and has authored numerous scientific studies. He concluded that he was undoubtedly eligible, given that his professional experience in the public and private sector is much more extensive than six years.
The Ombudsman's assessment
20. The Ombudsman points out from the outset that, according to settled case-law of the Court of Justice of the EU, selection boards enjoy a wide margin of discretion in establishing the requirements for a post, assessing candidates' qualifications, and judging whether the qualifications are sufficient for admission to the relevant competition. In view of this, the Ombudsman's task is, therefore, limited to ascertaining whether the Selection Board's judgment was vitiated by a manifest error of assessment. The Ombudsman's role is not to substitute his own assessment for that of the Selection Board.
21. Given that ECHA did not dispute that the complainant fulfilled the total professional experience requirements, the central question in the present case is whether the complainant fulfilled the minimum relevant professional experience requirements of at least five years in the areas set out in section 1 of the vacancy notice of which at least three years should involve practical exposure to specific tasks.
22. In its opinion, ECHA set out the elements in the complainant's CV the Selection Board took into account to reach the conclusion that he did not possess the required five years' professional experience in the areas concerned. Moreover, ECHA pointed out that, of the four tasks identified in the vacancy notice, the Selection Board acknowledged that the complainant had practical exposure to only one. Consequently, ECHA provided what at first sight appears to be a reasonable account to support the Selection Board's decision that the complainant did not meet the relevant professional experience requirements and could not thus be considered for selection for an interview.
23. In his observations, the complainant did not put forward any specific arguments capable of calling ECHA's evaluation into question. Taking into account all the information submitted to him, the Ombudsman considers that there is no manifest error in ECHA's assessment of the complainant's application.
24. In light of the above considerations, the Ombudsman finds no maladministration in relation to the complainant's allegation.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
There was no maladministration in relation to the complainant's allegation.
The complainant and ECHA will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 18 December 2012
 Section 1 of the vacancy notice provides: "... ECHA Reporting team is supporting the whole organisation in their reporting needs and is therefore working with many different data sources. The main tool used is the latest version of SAP BusinessObjects. The position, reporting to the Head of Unit Management Information Systems, is highly cross-functional and focuses on the improvement and extension of ECHA reporting.
The job includes the following tasks:
- Administer the BusinessObjects installations and manage access rights;
- Create new BusinessObjects universes based on the reporting needs of the users and maintain existing Universes;
- Support BusinessObjects users at ECHA when they have questions;
- Create and maintain reports based on discussions with the business owners;
- Discuss reporting needs and support projects by providing advice and best practices in BusinessObjects and other reporting solutions;
- Contribute a reporting perspective to the Data Warehouse projects and potentially work in Data Warehouse project;
- Contribute to the Activity Based Management project;
- Document the work done;
- Any other related tasks."
 Section 2.3, second sentence of the vacancy notice provides: ... "Of your total professional experience at least five (5) years must in the areas set out in section 1 "THE JOB" above and at least three (3) years of this experience must involve practical exposure to:
- Setting up and administering Business Objects Enterprise XI 3.1 (Management console, Designer) and Business Objects Web Intelligence;
- Gathering reporting needs and building custom reports;
- One of the most common databases, preferably Oracle (version 10g or later);
- Organisation-wide reporting systems in public or private organisations."
 Section 2.2 of the vacancy notice provides: "Qualifications
a) Successful completion of post-secondary level education attested by an IT Diploma; b) Successful completion of secondary education giving access to post-secondary education and having additional relevant professional IT experience of at least three (3) years."
 Complaint 1140/2010/MHZ.
 Cited in footnote 2 above.
 Case T-54/91 Antunes v Parliament  ECR II-1739, paragraph 39; and Case T-249/01 Boixader Rivas v Parliament  ECR II-749, paragraph 29.
 See the Ombudsman's decisions closing his inquiries complaint 1370/2010/(KM)BEH, paragraph 40, into complaint 1592/2009/ELB, paragraph 29, and complaint 2965/2008/(VL)BEH, paragraph 20.
 Section 2.3, first sentence of the vacancy notice provides: "To qualify for this profile (AST 4) you must have total professional experience of at least six (6) years on the basis of 2.2 a) [post-secondary education], and of at least nine (9) years, on the basis of 2.2 b) [secondary education], after achieving the qualification set out in 2.2 a) or b) above."
 Cited in footnote 1 above.
 Cited in footnote 2 above.
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