Decision of the European Ombudsman on complaint 821/2003/JMA against the European Parliament

Strasbourg, 22 September 2004

Dear Mr C.,

On 28 April 2003, you lodged a complaint with the European Ombudsman against the European Parliament. The complaint concerns the rejection of your application for a traineeship with the Parliament.

You had sent a previous complaint to the Ombudsman concerning the same subject-matter on 20 December 2002 (ref.: 32/2003/JMA), which was declared inadmissible on 28 January 2003.

On 23 June 2003, I forwarded your complaint to the President of the European Parliament with a request for comments. On 19 September 2003, I received the Parliament's opinion, which I forwarded to you with an invitation to make observations. You sent me your observations on the Parliament's opinion on 27 October 2003.

I apologise for the length of time that it has taken to deal with your complaint.

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

THE COMPLAINT

The facts of the case are, in summary, as follows:

On 20 December 2002, the complainant had first lodged a complaint with the Ombudsman against the European Parliament. The complaint was registered under file number 32/2003/JMA. In his complaint, Mr C. explained that having submitted an application for a paid traineeship with the European Parliament in September 2002, the responsible services informed him in December 2002 that he was not among the selected applicants. Since the complainant believed his application met all the criteria set out in the rules governing the Parliament's traineeships, he took the view that the decision was arbitrary. He complained against both the lack of transparency in the procedure for the selection of trainees, and the absence of means of appeal. These aspects were compounded by the fact that, in his view, the applicable rules were not sufficiently clear.

On the basis of the information submitted by the complainant, the Ombudsman considered that the complaint had not been preceded by the appropriate administrative approaches to the institution concerned, as required by Art. 2 (4) of his Statute. Accordingly, the Ombudsman declared the complaint inadmissible on 28 January 2003.

On 6 May 2003, the complainant forwarded additional information, which included different letters he had sent to the Parliament and a reply from the Parliament’s services, dated 7 April 2003, regarding the subject matter of his complaint to the Ombudsman. Taking into consideration the new evidence, the Ombudsman decided to register the complainant's exchanges with the Parliament as a new complaint (reference 821/2003/JMA), and started an inquiry.

In his new letter to the Ombudsman, the complainant also referred to the Parliament's refusal to grant access to the list of trainees who had been selected, on the grounds that this information involves personal data and therefore its release may encroach on their right to privacy. The complainant argued that the selection of trainees is a public procedure, and therefore its results should not be considered confidential.

In summary, the complainant alleged that (i) the decision of the European Parliament to reject his application for a traineeship was not sufficiently reasoned; (ii) the procedure for the selection of trainees by the European Parliament is ambiguous and does not provide possibilities for appeal; and (iii) Parliament's refusal to grant access to the list of selected trainees on the basis of data protection is misplaced in the context of a public competition.

THE INQUIRY

The European Parliament's opinion

In its opinion, the Parliament first described the factual aspects of the case. The institution listed the oral and written exchanges between the complainant and its services. It underscored that all the allegations made in the complaint to the Ombudsman had already been considered, and thoroughly replied to, in the letter from its services to the complainant dated 7 April 2003. Nevertheless, the institution’s opinion addressed each of the allegations made by the complainant.

As regards the procedure for the selection of trainees, the Parliament referred to the arguments put forward by its services in their reply of 7 April 2003. The institution noted that, in accordance with the criteria set out in Article 6 (3) of the Rules applicable to the European Parliament's Traineeships and Study Visits of 18 December 2002, its services reviewed all applications on the basis of merit, current needs and availability. In selecting the best candidates, each Directorate General seeks to match its outstanding tasks with the particular skills of the applicants, so that the trainees selected may gain the most useful experience.

The Parliament recalled that the provisions of the Rules applicable to the European Parliament's Traineeships and Study Visits address all aspects of the selection of trainees, including the possibility of appeals. It pointed out that the general conditions governing admission are clearly spelled out in Article 5 of the Rules, the admission procedure is described in Article 6, and the rules on disputes are included in Article 24. In the Parliament's view, the procedure laid down in these provisions is clear and unambiguous. The institution noted that any analogy between the procedures for the recruitment of officials and those for the selection of trainees does not appear to be appropriate, since they aim at very different objectives. The Parliament pointed out that whilst a Notice of competition has a binding nature and imposes clear obligations, the rules pertaining to traineeships leave a wide margin of discretion to its services.

In relation to the complainant's request for access to the list of selected trainees, the Parliament referred to the exception provided in Article 4 (1)(b) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. On the basis of this provision, access to a document should be refused where disclosure would undermine the protection of privacy and the integrity of the individual, in accordance with Community legislation regarding the protection of personal data. In the Parliament's view, the document requested by the complainant was covered by the provisions of Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions. The institution referred to Article 5 (a) and (b) of Regulation 45/2001 which state that personal data may be processed only if it is necessary for the performance of a task carried out in the public interest, or for compliance with a legal obligation; and to Article 8, which limits the transfer of personal data to recipients, other than Community institutions and bodies.

The complainant's observations

In his observations on the Parliament's opinion, the complainant repeated the allegations made in his complaint.

THE DECISION

1 Reasoning of the Parliament's decision not to select the complainant

1.1 The complainant alleges that the decision of the European Parliament to reject his application for a traineeship was not sufficiently reasoned. As he considers that his application met all the criteria set out in the rules governing the Parliament's traineeships, he takes the view that the decision was arbitrary.

1.2 The Parliament argues that its reply to the complainant of 7 April 2003 thoroughly described the procedure followed by its services for the selection of trainees.

The institution pointed out that, in accordance with the criteria set out in Article 6 (3) of the rules governing traineeships, its services had reviewed all applications on the basis of merit, current needs and availability. In selecting the best candidates, each Directorate General seeks to match its outstanding tasks with the particular skills of the applicants, so that the trainees selected may gain the most useful experience.

1.3 On the basis of the information provided in the course of the Ombudsman's inquiry, it appears that following the complainant's application for a paid traineeship, the Parliament first replied to him on 12 December 2002. In its letter, the institution informed the complainant that his application had not been successful, and succinctly explained that it had forwarded the file to all the administrative units in its General Secretariat in which the complainant had expressed an interest, but that none of them had selected his name.

The Ombudsman notes that following the correspondence from the complainant expressing dissatisfaction with the reasoning furnished by the Parliament, the institution sent him a more elaborate two-page reply on 7 April 2003. In this letter, the Parliament described the procedure followed by its services for the selection of candidates, in particular the criteria which had been applied, and the manner in which the assessment of merits had been carried out(1).

1.4 The Ombudsman notes that the right to good administration as set out in Article 41 of the Charter of Fundamental Rights of the European Union imposes on the administration the obligation to give reasons for its decisions. As the European Code of Good Administrative Behaviour also recognises in Article 18, decisions adopted by EU institutions must state the grounds on which they are based(2).

1.5 The Ombudsman notes that the Parliament sought to explain its reasoning in the letters to the complainant of 12 December 2002 and 7 April 2003. In these letters, the institution described the procedure followed by its services for the selection of trainees, the relevant criteria which had been applied, and the manner in which the assessment of the merits of each applicant had been carried out.

In view of the above, the Ombudsman takes the view that the approach followed by the Parliament in this instance seems reasonable. The Ombudsman therefore finds no maladministration as regards this aspect of the case.

1.6 The Ombudsman notes, however, that one the main criteria referred to by the institution in its letters to the complainant, namely the current needs of its services, is not mentioned explicitly in Article 6 (3) of the rules governing traineeships. The Ombudsman will address this issue below, in part 2 of this decision.

2 Procedure for the selection of trainees by the European Parliament

2.1 The complainant alleges that the procedure for the selection of trainees by the European Parliament is ambiguous and does not provide possibilities for appeal. In his view, the rules governing the Parliament's traineeships are not sufficiently clear.

2.2 The Parliament argues that its Rules governing Traineeships and Study Visits of 18 December 2002 address all the aspects concerning the selection of trainees, including the possibility of appeals. It points out that the general conditions for admission are clearly spelled out in Article 5, the admission procedure is described in Article 6, and the provisions on disputes are laid down in Article 24. In the Parliament's view, the procedure established by these provisions is clear and unambiguous.

2.3 The Ombudsman notes that the general conditions governing the admission of trainees by the European Parliament as well as the trainees' rights and obligations are included in the Parliament's Rules for Traineeships and Study Visits of 18 December 2002.

The provisions concerning the admission of trainees are laid down in Articles 5 (General conditions governing admission)(3) and 6 (Admission procedure)(4). These rules establish the criteria that applicants must meet as regards, among others, linguistic skills. Similarly, they describe the procedure for the selection of trainees to be followed by the Parliament services, and the manner in which these services have to assess the merits of applicants.

As regards potential disputes resulting from the application of the Rules, Article 24 sets out a special appeal procedure(5), in application of which the Parliament's Director General for Personnel or, in the event of a conflict, the Secretary-General should make the final decision.

2.4 The Ombudsman is mindful of the fact that the admission procedure set out in Article 6 of the Parliament's Rules for Traineeships and Study Visits gives a wide margin of discretion to those officials responsible for the selection of trainees, namely the directors-general and the heads of autonomous units. This discretionary power, however, is not unfettered, but rather it appears to be subject to a number of checks and balances. The Ombudsman notes that selected trainees have to meet several conditions which are laid down in Article 5 of the Rules, and that the whole process is overseen by an Advisory Committee on Traineeships which can make recommendations to the Parliament's Secretary-General(6).

2.5 In view of the above considerations, the Ombudsman finds that the Parliament's Rules for Traineeships and Study Visits of 18 December 2002 appear properly to govern matters pertaining to traineeships, in particular the selection procedure, and the trainees' rights and obligations, including the available means of appeal.

2.6 The Ombudsman wishes to draw Parliament’s attention, however, to the fact that its existing rules for Traineeships and Study Visits, in particular Article 6 concerning the admission procedures, do not mention one of the main criteria referred to by the institution in its letters to the complainant, namely the current needs of its services. The Ombudsman is mindful of the fact that the interests of the service are a general principle to which the administration must have regard. However, the Ombudsman suggests that, in the interests of effective communication with citizens, Parliament could consider including in its Rules for Traineeships and Study Visits specific reference to the fact that the criteria by which applications for traineeships are assessed include the current needs of the service. The Ombudsman will address a further remark to the Parliament to this effect below.

3 Public availability of the list of successful applicants for a traineeship with the European Parliament

3.1 The complainant alleges that the European Parliament's refusal to grant access to the list of selected trainees on the basis of data protection, is misplaced in the context of a public competition. He argues that the selection of trainees is carried out through a public procedure, and therefore its results should not be considered confidential.

3.2 The Parliament argues that its refusal to grant access was based on the exception contained in Article 4 (1)(b) of Regulation 1049/2001(7) whereby access to a document should be refused where disclosure would undermine the protection of privacy and the integrity of the individual. In the Parliament's view, the document requested by the complainant is covered by the provisions of Regulation No 45/2001 on the protection of individuals about the processing of personal data by the Community institutions. The institution referred to Article 5 (a) and (b) of Regulation 45/2001 which states that personal data may be processed only if it is necessary for the performance of a task carried out in the public interest, or for compliance with a legal obligation; and to Article 8, which limits the transfer of personal data to recipients, other than Community institutions and bodies.

3.3 The Ombudsman notes that the complainant's allegation does not appear to contest the European Parliament’s refusal of his request for access to a particular document under Regulation 1049/2001, but rather it concerns the more general issue of whether the list of names of successful applicants for a traineeship with the European Parliament should be public and the role of data protection considerations in this respect.

3.4 The Ombudsman notes that, Article 4 of Regulation 45/2001(8), requires that personal data must be processed fairly and lawfully. The Ombudsman also points out that Article 5 of Regulation 45/2001 contains a number of alternative conditions for the lawful processing of personal data, the first of which is, in part:

“[P]rocessing is necessary for the performance of a task carried out in the public interest on the basis of the Treaties establishing the European Communities or other legal instruments adopted on the basis thereof or in the legitimate exercise of official authority vested in the Community institution or body …”

3.5 The Ombudsman considers that it could be a legitimate exercise of official authority for the European Parliament to make a decision that the names of those who are offered and accept a traineeship with the European Parliament should be made public and to inform potential applicants for traineeships of that fact. The Ombudsman recalls that he has adopted a similar view in other contexts(9).

The Ombudsman points out that the present complaint appears to indicate that publishing the names of those who are offered and accept traineeships with the European Parliament would be appreciated as a contribution to openness, similar to that which the European Parliament has already made as regards the names of successful candidates in open competitions and the names of accredited MEPs’ assistants.

3.6 The Ombudsman notes, however, that the European Parliament's existing Rules for Traineeships and Study Visits of 18 December 2002 do not contain any provision concerning the publication of the names of those who are offered and accept traineeships. As a result, individuals considering applying for traineeships do not receive any information in this regard.

The Ombudsman therefore takes the view that it would be appropriate for the European Parliament to consider whether it should revise its Rules for Traineeships and Study Visits so as to stipulate that the list of names of persons who accept the offer of a traineeship will be a public document. This measure would both provide information to applicants for traineeships and clarify the legal status of the list for the future. The Ombudsman will address a further remark to Parliament to this effect.

In these circumstances and taking into account the fact that the complainant’s allegation in the present complaint does not concern a specific application for access to a document under Regulation 1049/2001, the Ombudsman considers that it is unnecessary to pursue further inquiries at this stage.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Parliament as regards the complainant’s first two allegations and no further inquiries are justified as regards the third allegation. The Ombudsman therefore closes the case.

The President of the European Parliament will also be informed of this decision. The Ombudsman will also forward a copy of this decision for information to the European Union's Data Protection Supervisor.

FURTHER REMARKS

1 In the interests of effective communication with citizens, Parliament could consider including in its Rules for Traineeships and Study Visits specific reference to the fact that the criteria by which applications for traineeships are assessed include the current needs of the service.

2 The Ombudsman takes the view that it would be appropriate for the European Parliament to consider whether it should revise its Rules for Traineeships and Study Visits so as to stipulate that the list of names of persons who accept the offer of a traineeship will be a public document. This measure would both provide information to applicants for traineeships and clarify the legal status of the list for the future.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Point 2 of the Parliament's letter of 7 April 2003 reads as follows (original in Spanish):

"Upon receipt of your application, and having checked that it met the admissibility criteria set out in Article 5 of the EP Rules for Traineeships and Study Visits, the file was forwarded to the administrative services in which you had expressed an interest, namely to the DG Committees and Delegations, to the DG Information and Public Relations, and to the Legal Service.

These three Directorate Generals carefully assessed your application, compared it with the other admissible applications, and then made a final selection. They based their choices not only on the merits of each applicant, but also on the needs of their services and on their ability to accommodate trainees, as set out in Article 6 (3) of the EP Rules for Traineeships and Study Visits.

The merits of each candidate, in particular the level of education and professional experience related to EU issues, were reviewed on the basis of the information furnished with his/her application.

Besides merit, the administration took into account the ability of the services to accommodate trainees and the tasks being currently undertaken [...].

From the above considerations, it is clear that the selection of candidates made by each service resulted from an objective review of both its needs and the interests expressed by candidates. The process which was carried out was not arbitrary or secretive, even though the services enjoy a wide degree of discretion.

Having reviewed the case, no instance of discrimination has been identified".

(2) Adopted by the European Parliament in its resolution C5-0438/2000 of 6 September 2001.

(3) Article 5 - General conditions governing admission
Trainees must:
(a) hold the nationality of a Member State of the European Union or of an applicant country;
(b) be between 18 and 45 years of age;
(c) have a thorough knowledge of one of the official languages of the European Union and a good knowledge of a second;
(d) not have been awarded any other paid traineeship by, or have been in the paid employment for more than four consecutive weeks of, a European institution or a Member of the European Parliament. 2. By way of derogation from the previous paragraph, citizens of third countries other than those of applicant countries may be awarded a number of traineeships in the European Parliament not exceeding 5% of the total number of traineeships decided on by the competent authority, pursuant to Article 3, providing they:
(a) are authorised to do so by the competent authority after an examination of their files;
(b) are between 18 and 45 years of age;
(c) have a thorough knowledge of one of the official languages of the European Union;
(d) have not been awarded any other paid traineeship by, or have not been in the paid employment for more than four consecutive weeks of, a European institution.

(4) Article 6 - Admission procedure
1. Using the application form provided for that purpose, applicants must send their applications to the service for auxiliary staff, local staff and contract staff and scholarships and traineeships in the Directorate-General for Personnel, (hereinafter referred to as 'the competent service'), together with all the requisite supporting documents.
2. The competent service shall consider the admissibility of applications on the basis of the general conditions governing admission laid down in Article 5 of these Rules and of the specific conditions governing admission to the various traineeship options laid down in Articles 18 and 21 thereof. It shall regularly forward copies of admissible applications to the directors-general and heads of autonomous administrative units in the Secretariat, account being taken of the candidates' requests for assignment.
3. The directors-general and heads of autonomous administrative units in the Secretariat shall consider the applications on the basis of the merits of the applicants and of their services' ability to accommodate trainees. In respect of each application proposed, they shall indicate the service to which the applicant is to be assigned and the name, office address and telephone number, etc. of the trainees' supervisor, together with the subject for the traineeship envisaged by the supervisor. They shall inform the competent service of their selections, listing applicants in order of priority; where candidates are of equal merit, it shall seek to establish the greatest possible balance in the geographical origin of candidates and ensure that a balance is struck between men and women.
4. The competent authority shall draw up the list of applicants thus proposed in the light of the total number of traineeships authorised under Article 3.2.
5. At the end of each selection procedure, the competent authority shall inform the Committee of the number of applications received, the number of admissible applications and the outcome of the selections made.

(5) Article 24 - Disputes
Power to rule on disputes arising out of the implementation of these Rules shall lie with the Director-General for Personnel, save where he/she is materially involved. In that event, power to rule on such disputes shall lie with the Secretary-General.

(6) Article 4 - Advisory Committee on Traineeships
1. [. .]
2. The Committee shall consist of one representative from each directorate-general and autonomous administrative unit appointed by the Secretary-General from among the officials responsible for traineeships in each such body. The Secretary-General shall also appoint the Chairman of the Committee, the secretary and an observer from the Committee on Equal Opportunities (COPEC).

(7) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents; OJ L 145, 31/05/2001 p.43.

(8) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data; OJ L 008 , 12/01/2001 p.1.

(9) Special Report from the European Ombudsman to the European Parliament following the draft recommendation to the European Parliament in complaint 341/2001/(BB)IJH (Annual report 2002, p.215).