Decision of the European Ombudsman on complaint 755/2004/OV against the European Parliament

Strasbourg, 14 April 2005

Dear Mr M.,

On 28 February 2004, you made a complaint to the European Ombudsman against the European Parliament concerning your exclusion from open competition PE/134/C.

On 7 April 2004, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 1 July 2004 and I forwarded it to you with an invitation to make observations, if you so wished. No observations have been received from you.

On 8 March 2005, my office contacted you by telephone in order to request a copy of two supporting documents mentioned in your complaint. You sent those documents by fax on 10 March 2005.

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

THE COMPLAINT

According to the complainant the relevant facts are as follows:

In January 2003, the complainant applied for open competition PE/134/C organised by the European Parliament for the recruitment of clerical assistants (C5-C4) in the field of general security(1). By letter of 18 September 2003, the President of the Selection Board informed the complainant that he could not be admitted to the competition because he did not enclose enough supporting documents concerning his professional experience.

By letter of 30 September 2003, the complainant asked for reconsideration of his application, as he considered that he had enclosed enough supporting documents. By letter of 11 November 2003, the President of the Selection Board informed the complainant that a further analysis of his application indeed showed that he possessed 5 years of professional experience in the security sector. However, the Selection Board maintained its decision not to admit the complainant to the competition, stating this time that the complainant had not enclosed supporting documents concerning the knowledge of a second EU language.

By letter of 16 October 2003, the complainant informed the Selection Board that he had enclosed documents concerning his languages in his original application. By letter of 9 January 2004, the Selection Board apologised for the error as the complainant had indeed enclosed documents concerning his language knowledge. The Selection Board however maintained that the complainant had not enclosed enough supporting documents concerning his professional experience, namely the last salary sheet.

In his reply of 19 January 2004 to the Selection Board, the complainant referred to the letter of 11 November 2003 in which the President of the Selection Board had explicitly stated that the complainant possessed 5 years of professional experience. The Selection Board replied on 3 February 2004 that the complainant failed to demonstrate that on 31 January 2003 he was still employed, and that therefore he could not be admitted to the competition.

The complainant observes that in his original application, he enclosed a certificate from the Belgian Ministry of Finance concerning his 16 months of professional experience, as well as a decision of the Ministry of Justice concerning his appointment from 1 September 1998 until the present day. He points out that it is common knowledge that an appointment with the federal Belgian public service is valid for the whole career and that a Belgian federal official does not receive monthly salary sheets. The argumentation of the Selection Board therefore shows ignorance concerning the functioning of the Belgian federal institutions. The complainant maintains that he fulfilled the professional experience criterion.

On 28 February 2004, the complainant made the present complaint to the Ombudsman alleging that the Selection Board's decision not to admit him to the competition is unfair and irregular because it has twice taken erroneous decisions (concerning first his professional experience and second his language knowledge) and it has contradicted itself (with regard to the professional experience).

THE INQUIRY

Parliament's opinion

In its opinion, Parliament made the following comments:

The complainant submitted an application - which was received on 16 January 2003 - for competition PE/134/C (clerical assistants in the area of general security). By letter of 18 September 2003, the Selection Board informed him that he had not been admitted to the competition because he had not enclosed sufficient supporting documentation concerning his professional experience. The competition notice stipulated clearly that the recent professional experience needed to be of at least five years, i.e. 60 months, and that it needed to be backed up by supporting evidence, with the most recent experience justified by a payslip. The complainant's proven experience was 42 months.

On 28 September 2003, the complainant challenged the Selection Board's decision because he believed that he had submitted the necessary supporting documentation. His file was reconsidered at the meeting of 3 November 2003 and the Selection Board upheld its decision not to admit him to the competition. The complainant was notified by letter of 12 November 2003. This letter alluded mistakenly to the knowledge of foreign languages and to the fact that he did have the necessary five years of professional experience. The complainant challenged this letter by letter of 19 November 2003 requesting a reconsideration of the supporting documentation which he had submitted in order to prove his knowledge of languages.

The Selection Board replied to the complainant by letter of 12 January 2004 apologising for the error concerning the knowledge of languages but confirming the fact that he did not possess the required professional experience as asked for in the competition notice. In this letter, the Selection Board explained in detail why the complainant did not satisfy the conditions of the competition notice with regard to professional experience. By letter of 19 January 2003, the complainant again challenged the said letter with regard to his professional experience and asked for his case to be reconsidered again. On 4 February 2004, the Selection Board confirmed its decision not to admit the complainant to the competition on the grounds that, by the closing date for applications, he had not furnished proof that he was still a Belgian civil servant.

On 9 February 2004, the complainant wrote to the chair of the Selection Board expressing his dissatisfaction with the way in which it had handled his application. Following this letter, the Selection Board reconsidered the candidate's file and the entire exchange of correspondence. It transpired that the Dutch version of the Selection Board's letter of 12 November 2003 did not correspond to the letter drawn up by the Selection Board in French. The Selection Board therefore asked the complainant to consider that letter as null and void. Parliament enclosed with its opinion copies of the original French version of the letter of 11 November 2003 and the Dutch translation of it.

In a letter of 28 February 2004 to the President of Parliament, the complainant set out the background to his application and contested the manner in which he had been dealt with by the Selection Board. The Competitions' Service replied on 6 April 2004, explained the Selection Board's line of reasoning and apologised for the translation mistake which was the origin of the entire misunderstanding.

Parliament concluded that the Selection Board committed no irregularities when considering the complainant's file. All the requests submitted by the complainant for his file to be reconsidered were satisfied by the Selection Board. Unfortunately, the Selection Board did not immediately detect the translation mistake in the letter of 12 November 2003 which was the origin of all the misunderstandings with the complainant. None of the Selection Board members knew Dutch. As it was a competition in a very specific area, the composition of the Selection Board was dictated by the qualifications of the members in the area rather than by their language knowledge. The Selection Board apologised for this in its reply of 12 January 2004 to the complainant.

The complainant's observations

The complainant made no observations on Parliament's opinion.

THE DECISION

1 The alleged unfair and irregular decision

1.1 The complainant alleges that the Selection Board's decision not to admit him to the competition is unfair and irregular because it has twice taken erroneous decisions (concerning first his professional experience and second his language knowledge) and it has contradicted itself (with regard to the professional experience).

1.2 Parliament observed that the reason why the complainant was not admitted to the competition was that his proven experience was 42 months, and not 60 months as required by the competition notice. With regard to the reasoning communicated to the complainant, Parliament explained that the entire misunderstanding concerning the reasoning for the rejection of the complainant's application was based on an error in the Dutch translation of the letter of the Selection Board of 12 November 2003. Parliament stated that the Selection Board apologised for this mistake in its letter of 12 January 2004.

1.3 The Ombudsman notes that point III.B.1 ("Special Conditions - Qualifications and professional experience required") of the notice of open competition PE/134/C(2) required "(b) at least five years' recent professional experience in the area of public or private general security" and provided that "training, studies and professional experience must be relevant to the job description in section II, described in detail on the application form and backed up by supporting evidence".

1.4 Point III.B.3 ("Supporting documents required") of the competition notice provided that "proof of the professional experience referred to in section III(B)(1) must be provided by producing one or more of the supporting documents listed below for guidance:

- employment contracts or certificates, letters or attestations of appointment, giving precise details of the type of work, which must be accompanied by salary slips that clearly show the dates when your professional experience started and (if appropriate) finished
- if you are still in relevant employment, your most recent payslip as proof of length of service
- proof of activity if you are self-employed (e.g. tax returns, VAT declarations, extract from the commercial register, social security, invoices)".

1.5 According to point XI.2 ("Applications") of the competition notice, the deadline for sending applications and supporting documents was 31 January 2003.

1.6 As supporting evidence for his professional experience, the complainant enclosed with his application two documents, namely 1) a certificate from the Belgian Ministry of Finance certifying 16 months of professional experience(3) and 2) an appointment decision from the Belgian Ministry of Justice of 29 November 2000 concerning his definitive appointment as an official on 1 September 2000(4).

1.7 The Ombudsman has carefully examined the file of the complaint, which contains the following correspondence between the Selection Board, the Competitions' Service of the European Parliament and the complainant:

In a first letter of 18 September 2003, the President of the Selection Board informed the complainant that he was not admitted to the competition, because he had not enclosed sufficient supporting evidence concerning his professional experience as required by point III.B.1.b) of the competition notice.

In a second letter of 11 November 2003(5), the President of the Selection Board, in reply to the complainant's request of 30 September 2003 for a reconsideration of his application, answered that, after a further inquiry, it appeared that the complainant had indeed five years professional experience in the area of public or private general security. The President of the Selection Board however informed the complainant that his application did not contain any supporting evidence concerning the knowledge of the second EU official language.

In a third letter of 9 January 2004(6), the President of the Selection Board admitted that the supporting documents concerning the knowledge of languages had been enclosed by the complainant in his application and apologised for the error made by the Selection Board. However, she reiterated that the complainant had not sent enough supporting evidence concerning his professional experience. More specifically, she pointed out that the complainant had enclosed a certificate from the Belgian Ministry of Finance and Customs for the employment periods of 6 January to 31 August 1997, 1 December 1997 to 31 May 1998 and 1 June 1998 to 31 August 1998 (16 months in total). The letter further referred to an appointment decision by the Ministry of Justice of 29 November 2000 according to which the complainant entered into service on 1 September 1998, and which thus demonstrated 26 months of professional experience. The letter however pointed out that, according to point III.B.3 of the competition notice, when the professional experience continues, the most recent payment slip had to be enclosed as proof of the length of service, and that the complainant had failed to enclose it. The Selection Board therefore confirmed the non admission of the complainant to the competition.

In a fourth letter of 3 February 2004(7), the President of the Selection Board stated that the complainant had failed to demonstrate that on 31 January 2003 he was still in service. The Selection Board therefore confirmed its decision.

In a fifth letter of 3 March 2004(8), the President of the Selection Board confirmed the decision of 18 September 2003. She pointed out that there had been a mistake in the letter of 11 November 2003 because of an error in the Dutch translation and asked the complainant to consider that letter as null and void. She confirmed the decision of 18 September 2003 referring also to the explanations given in the letters of 9 January and 3 February 2004.

Finally, in a sixth letter of 5 April 2004(9), the Head of the Competitions' Service of the European Parliament explained once again that there had been a translation error in the letter of 11 November 2003, referred to the 16 and 26 months of professional experience as calculated in the letter of 9 January 2004, and pointed out to the complainant that there was no supporting evidence concerning the complainant's most recent employment (payment slip). The Competitions Service concluded that the complainant had proved a total professional experience of 42 months and not 60 months (i.e. 5 years) as required by the competition notice. It apologised for the translation error that it stated to be the source of all the misunderstandings.

1.8 On the basis of the above elements in the file, the Ombudsman comes to the following conclusions:

1.9 The reason why the complainant's application was finally rejected was that he did not justify, with the supporting evidence he had enclosed, 5 years or 60 months of professional experience by the date of 31 January 2003, as required by the competition notice. The details concerning the calculation of the complainant's years of professional experience were communicated to the complainant in the letters of 9 January and 5 April 2004. The Selection Board concluded that the complainant had proved 42 months of professional experience.

1.10 The Ombudsman notes that, apart from the two documents which the complainant enclosed with his application, and which demonstrated 16 months and 26 days(10) (Ministry of Finance) and 27 months (Ministry of Justice) of professional experience (i.e. in total 43 months and 26 days), the complainant failed to provide supporting evidence - such as a pay slip or a certificate from his employer that he was still in service on 31 January 2003 - for his professional experience after the date of 29 November 2000. The Ombudsman therefore considers that the Selection Board's decision not to admit the complainant to the competition because of lack of supporting evidence concerning professional experience of five years appears to be reasonable. The complainant's allegation that the Selection Board's decision was unfair and irregular can therefore not be sustained and no instance of maladministration was found.

1.11 However, the Ombudsman notes that, in the first three letters mentioned in point 1.7 above, the Selection Board communicated differing and contradictory reasons to the complainant for his non admission to the competition, namely 1) lack of supporting evidence of 5 years' professional experience, 2) lack of supporting evidence concerning the knowledge of a second EU language, and later again 3) lack of supporting evidence of 5 years' professional experience. The Ombudsman understands the dissatisfaction that the complainant must have felt at receiving contradictory reasons from Parliament in a matter of such importance to him as an application for employment. The Ombudsman also notes that in replies to the complainant’s subsequent correspondence, the Selection Board, and later the Competitions' Service of Parliament, have explained to the complainant the reason for the contradiction in the letters, namely an error in the Dutch translation and have apologised for that error. In its opinion, Parliament provided copies of the original French version of the letter of 11 November 2003 which should have been sent to the complainant (and which referred to the lack of supporting evidence concerning the professional experience and not concerning the knowledge of a second EU language), and of the erroneous Dutch translation of it.

1.12 With regard to this aspect of the complaint, the Ombudsman notes that every decision of an Institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision(11). In the present case, the Ombudsman finds that, because of an error in the Dutch translation of the letter of 11 November 2003, the European Parliament failed to indicate clearly to the complainant the grounds for the decision not to admit him to the competition. This was an instance of maladministration, and the Ombudsman makes the critical remark below.

2 Conclusion

On the basis of the Ombudsman's inquiries into the complainant's allegation that the Selection Board's decision was unfair and irregular, there appears to have been no maladministration.

On the basis of the Ombudsman's inquiries into the allegation that contradictory information was supplied to the complainant, it is necessary to make the following critical remark:

Every decision of an Institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision(12). In the present case, the Ombudsman finds that, because of an error in the Dutch translation of the letter of 11 November 2003, the European Parliament failed to indicate clearly to the complainant the grounds for the decision not to admit him to the competition. This was an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past and that the European Parliament has already acknowledged and apologised for its error, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2002 C 303 A/30.

(2) OJ 2002 C 303 A/30.

(3) The complainant himself mentions 16 months of professional experience. A calculation of the periods mentioned in that certificate leads to 16 months and 26 days of professional experience.

(4) By decision of 16 September 1998, the complainant had been appointed as official on probation with effect from 1 September 1998.

(5) The Ombudsman notes that the letter has two dates, namely 11 November 2003 (printed) and 12 November 2003 (stamped).

(6) The Ombudsman notes that the letter has two dates, namely 9 January 2004 (printed) and 12 January 2004 (stamped). The letter was sent in reply to the complainant's letter of 16 October 2003.

(7) The Ombudsman notes that the letter has two dates, namely 3 February 2004 (printed) and 4 February 2004 (stamped). The letter was sent in reply to the complainant's letter of 19 January 2004.

(8) The Ombudsman notes that the letter has two dates, namely 3 March 2004 (printed) and 4 March 2004 (stamped). The letter was sent in reply to the complainant's letter of 9 February 2004.

(9) The Ombudsman notes that the letter has two dates, namely 5 April 2004 (printed) and 6 April 2004 (stamped). The letter was sent in reply to the complainant's letter of 28 February 2004.

(10) See footnote 3.

(11) Article 18 "Duty to state the grounds of decisions" of the European Code of Good Administrative Behaviour.

(12) Article 18 "Duty to state the grounds of decisions" of the European Code of Good Administrative Behaviour.