Decision of the European Ombudsman on complaint 1234/2006/WP against the European Personnel Selection Office

Strasbourg, 4 September 2007

Dear Mr S.,

On 21 April 2006, you made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your exclusion from Open Competition EPSO/AD/22/05.

On 31 May 2006, I forwarded the complaint to the Director of EPSO. By letter of 29 June 2006, EPSO informed me that you had also lodged a complaint under Article 90(2) of the Staff Regulations, which concerned the same matter. EPSO stated that it would send me a copy of its official reply to your Article 90(2) complaint in order to provide me with all the clarifications concerning the complaint you had submitted to me. By letter of 11 July 2006, I informed EPSO that I agreed to this approach, which, however, would not affect the deadline for the submission of its opinion to me.

On 22 August 2006, EPSO sent me a copy of its decision on your Article 90(2) complaint. On 15 September 2006, you sent me an e-mail, commenting on that decision.

On 18 October 2006, and following repeated reminders, EPSO sent me a translation of its decision into German. I forwarded it to you on 23 October 2006 with an invitation to make observations, which you sent on the same day.

On 12 February 2007, I asked EPSO for a supplementary opinion on two new allegations, which you had made in your e-mail of 15 September 2006 and in your observations. EPSO sent the original French version of its reply on 14 March 2007 and a translation of it into German on 23 March 2007. On 30 March 2007, I forwarded the latter document to you with an invitation to make observations, which you sent on 22 April 2007.

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

THE COMPLAINT

The complainant, a Hungarian engineer, took part in Open Competition EPSO/AD/22/05 for the recruitment of Heads of Unit in certain specified fields. For the complainant's chosen field, "Management of research programmes", the Notice of Competition(1) established the following admission criterion (point A.II.1):

"You must have (i) a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is four years or more (...) or (ii) a level of education which corresponds to completed university studies attested by a diploma and appropriate professional experience of at least one year when the normal period of university education is at least three years."

Under the title "professional experience", the Notice of Competition furthermore established (point A.II.2):

"You must have gained at least 10 years' full time professional experience relevant to the duties concerned of which five years in management positions. This experience must have been obtained after obtaining the four-year diploma or after obtaining the three-year diploma with the one year relevant professional experience (see section A.II.1)."

Although he had passed the pre-selection tests, EPSO did not admit the complainant to the oral tests, informing him that he did not fulfil the required admission criteria. It stated that, according to the Notice of Competition, only professional experience acquired after having obtained the relevant university diploma and up to the deadline for applications for the competition could be taken into account. The complainant had not obtained the required full ten years of professional experience between the conclusion of his studies, on 20 December 1995, and the deadline for applications, namely, 28 July 2005.

Following a re-examination of the complainant's file, the Selection Board confirmed its position. On 21 March 2006, the complainant lodged a complaint under Article 90(2)(2) of the Staff Regulations. On 21 April 2006, he also turned to the European Ombudsman. He alleged that the Board had wrongly decided not to admit him to the oral tests. He argued that, whereas point A.II.1 referred to a "normal period of university education (of) four years or more", this was not the case for point A.II.2. This provision only laid down a criterion of university education of three and four years. However, in his case, the normal period of university education was five years. The complainant considered that his application could only have been rejected had point A.II.2 referred to a period of "at least four years". According to him, the Notice of Competition did not specify when candidates holding a diploma for which the normal period of university education is more than four years had to have obtained their professional experience. Since this constituted a lacuna in the wording of the Notice of Competition, his application could not be rejected on this basis. It appeared from the documents enclosed with his complaint that the complainant considered that EPSO should have taken into account work experience he had acquired before the end of his studies, for example through traineeships.

The complainant claimed that (1) the Selection Board's decision should be reviewed and (2) he should be admitted to the next stage of the selection procedure.

THE INQUIRY

EPSO's opinion

In its opinion, which also constituted its decision on the complainant's complaint under Article 90(2) of the Staff Regulations, EPSO recalled that, while

"the Appointing Authority enjoys a wide discretion to determine the conditions governing a competition, the Selection Board is bound by the text of the competition notice as published. The competition notice forms both the legal basis and the basis of assessment for the Selection Board"(3).

According to EPSO, the reference in point A.II.2 to point A.II.1 of the Notice of Competition made it clear that, in any event, a candidate had to have acquired ten years of professional experience after having obtained the required diploma, provided such a diploma was awarded on the completion of university studies which normally lasted at least four years. The only exception to this rule was made in the case of a university course of a lesser duration, namely, three years, after which an additional "eleventh" year of professional experience was required.

EPSO submitted that the complainant's argument that point A.II.2 should have read "[t]his experience must have been obtained after obtaining the four-year or more diploma (...)" did not take into account the fact that point A.II.2 had to be read in conjunction with point A.II.1, to which it expressly referred. EPSO recalled that, according to the established case-law of the Community Courts, each provision of Community law had to be interpreted not only pursuant to its wording but also pursuant to its objective. An isolated reading of point A.II.2 would imply that, in effect, candidates who obtained their diploma after a normal period of studies of more than four years would need no professional experience at all. According to EPSO, this interpretation was "a nonsensical view that [the complainant] himself did not take in his exchanges with EPSO". EPSO pointed out that, in the Notice of Competition, there was no reference to special circumstances under which ten years of professional experience after obtaining the relevant diploma would not be required. Rather, professional experience was a central theme throughout the entire Notice of Competition.

EPSO added that it should have been clear to the complainant that the professional experience had to be obtained after the award of the relevant diploma since he had referred to the deadline for obtaining such a diploma in one of his e-mails to EPSO that had preceded his complaint. EPSO recalled that the complainant had expressed the view that the Notice of Competition did not expressly set out the same requirements for candidates who take a four-year university course and for candidates whose university course takes more than four years of study. In this regard, EPSO stated that, even if, for the sake of argument, it accepted the complainant's argument, the Notice of Competition certainly did not state what the complainant had suggested, namely, that experience acquired during the candidate's studies could be taken into account in the latter case. Therefore, the Selection Board could not possibly have taken the complainant's traineeships during his studies into account. On the basis of these considerations, EPSO rejected the complaint.

The complainant's observations

In two e-mails of 15 September and 23 October 2006, the complainant informed the Ombudsman that he was unhappy with EPSO's decision for a number of reasons. First of all, the decision had been in English, although all his previous correspondence with EPSO had been in German. In a letter accompanying the decision, drafted in German, EPSO had informed him that he could request a translation into German. However, it had taken three weeks and two faxes before EPSO had sent him the translation. Furthermore, EPSO had informed him that the decision was considered to have been communicated to him when he received the English version. The complainant considered this to be unfair because he did not understand English and had thus been unable to make any use of the decision, for example in order to institute Court proceedings, for three weeks.

The complainant also took the view that it seemed that EPSO tried to ridicule his complaint by stating that, if his logic were applied, Heads of Unit would not need any professional experience at all. He stated that he had the impression that EPSO had realised its mistake, but did not wish to admit it.

Further inquiries
The Ombudsman's request for a supplementary opinion

After careful consideration of EPSO's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman decided to ask EPSO for a supplementary opinion on the following two new allegations, which the complainant had made in his observations:

1. The complainant alleges that EPSO failed to send him the decision on his complaint under Article 90(2) of the Staff Regulations in the language in which he had submitted his complaint, and that he had to make a request in order to obtain a translation of the decision.
2. The complainant alleges that EPSO wrongly informed him that the decision was considered as having been communicated to him as soon as he had received the original (English) version. According to the complainant, he had to wait for the translation for three weeks, during which time he was not able to take any action in the matter because he does not understand English.

EPSO's supplementary opinion

In its supplementary opinion, EPSO first recalled that it had taken its decision on the complainant's Article 90(2) complaint on 18 July 2006 and thus ahead of the relevant deadline, which had been 14 August 2006. Therefore, EPSO had not deprived the complainant of his right to bring the matter before the Courts.

EPSO stated that, when it sent the decision to the complainant, it informed him of the possibility to be provided with a translation. Following the complainant's request, made on 30 July 2006, EPSO sent the decision for translation. On 18 August 2006, the complainant had sent a reminder. On 22 August 2006, EPSO informed him that the translation would be sent to him as soon as it was available. The translation was sent on 23 August 2006.

EPSO submitted that, in spite of the Commission's official summer vacation, the translation services had done their best to handle this specific request as quickly as possible. EPSO conceded that the German translation had been sent to the complainant nine days after the deadline fixed in Article 90(2) of the Staff Regulations. However, it was not clear how this could have prevented the complainant from taking any action for three weeks. First, it had to be remembered that, in order to institute proceedings before the Civil Service Tribunal, applicants wishing to contest a decision taken under Article 90(2) disposed of a period of three months, plus ten days of "délai de distance". Thus, having received the German translation of the decision on 23 August 2006, the complainant had disposed of a period running until 4 December 2006 in order to bring the matter before the Tribunal. Second, the complainant had been informed in the accompanying letter to the decision, dated 20 July 2006, that he could institute proceedings against the decision before the Tribunal. Therefore, the complainant had known that the decision had been negative and that he would receive a translation which would activate the start of the period in which he could introduce a legal action. Therefore, the complainant had not suffered any disadvantage resulting from the fact that he had to wait for the translation.

EPSO took the view that the complainant's rights had been respected.

The complainant's observations

In his observations, the complainant submitted that EPSO had again tried to ridicule his complaint by stating that, even though the decision had been in English, he could have gathered that it was negative. He argued that, before receiving the German translation, he could not have known the reasons for which his complaint had been rejected. Given that one did not normally institute legal proceedings on the basis of "having gathered something" but on the basis of facts, the time available to him to arrange for legal representation had been reduced. Therefore, the complainant maintained his position in this respect.

However, the complainant asked the Ombudsman to base his final decision on the central problem he had raised, namely, that he had wrongly been excluded from the selection procedure.

THE DECISION

1 Introductory remarks

1.1 The complainant, a Hungarian engineer, was excluded from Open Competition EPSO/AD/22/05 because, according to the European Personnel Selection Office ("EPSO"), he did not fulfil the required admission criteria. The Notice of Competition required that candidates had to have acquired, by the deadline for the submission of applications, ten years of professional experience after having obtained their university diploma. Given that the complainant had obtained his diploma on 20 December 1995 and that the deadline for applications had been 28 July 2005, the Selection Board decided that the complainant did not fulfil this criterion. In his complaint under Article 90(2)(4) of the Staff Regulations and in his complaint to the European Ombudsman, the complainant argued that the relevant provision of the Notice of Competition only referred to diplomas obtained upon completion of a three-year or four-year university course. However, the Notice of Competition did not specify when candidates holding a diploma awarded after a university course that exceeded four years, like in his case, had to have obtained their professional experience. Since this constituted a lacuna in the wording of the Notice of Competition, his application could not be rejected on this basis. The complainant claimed that the Selection Board's decision to exclude him from the competition should be reviewed and that he should be admitted to the next stage of the selection procedure.

1.2 In his observations on EPSO's opinion, the complainant made two further allegations, namely, that (i) EPSO had failed to send him its decision on his Article 90(2) complaint in the language in which he had submitted his complaint and (ii) EPSO had wrongly informed him that the decision was considered as having been communicated to him as soon as he had received the original (English) version. The Ombudsman decided to include these issues in his inquiry and asked EPSO for a supplementary opinion on them.

1.3 In the following decision, the Ombudsman considers it useful first to assess the substantive problem at issue, namely, the complainant's exclusion from the competition, and then to discuss the two allegations related to the communication of EPSO's decision to him.

1.4 Before entering into his assessment, the Ombudsman would like to recall that candidates in open competitions organised by EPSO are allowed to make use both of the complaints procedure under Article 90(2) of the Staff Regulations and of the possibility to submit a complaint to the Ombudsman. The possibility allowing for both options is confirmed in the relevant notices of competition(5). However, if a candidate chooses first to lodge an Article 90(2) complaint and then to turn to the Ombudsman, the Ombudsman normally requires that the complainant wait for the Appointing Authority's decision on his Article 90(2) complaint before opening an inquiry. This practice is derived from the admissibility condition for complaints to the Ombudsman laid down in Article 2(4) of his Statute, which stipulates that a complaint has to be preceded by "appropriate prior administrative approaches" to the authority against which the complaint is directed. In the present case, the Ombudsman did not know that the complainant had lodged an Article 90(2) complaint shortly before turning to him. When EPSO informed the Ombudsman of this fact, it did not contest the admissibility of the complainant's complaint to the Ombudsman, but proposed to send the Ombudsman a copy of its decision on the complainant's Article 90(2) complaint to serve as its opinion for the purposes of the Ombudsman's inquiry. The Ombudsman agreed to this approach.

2 Allegedly wrongful exclusion from selection procedure

2.1 In support of his allegation that he had wrongly been excluded from the selection procedure, the complainant submitted that the relevant Notice of Competition did not state when candidates who had obtained their diploma upon completion of a university course of more than four years had to have obtained their professional experience. It appeared from the documents enclosed with his complaint that he considered that EPSO should have taken into account work experience he had acquired before the end of his studies, for example through traineeships.

2.2 In its decision on the complainant's Article 90(2) complaint, EPSO recalled that, according to the established case-law of the Community Courts, each provision of Community law had to be interpreted not only pursuant to its wording but also pursuant to its objective. The complainant's argument that the relevant provision, that is, point A.II.2 of the Notice of Competition, did not refer to university courses of more than four years did not take into account that point A.II.2 had to be read in conjunction with A.II.1, to which it expressly referred. An isolated reading of point A.II.2 would imply that, in effect, candidates who obtained their diploma after a normal period of studies of more than four years would need no professional experience at all. EPSO stated that this interpretation was "a nonsensical view that [the complainant] himself did not take in his exchanges with EPSO". EPSO pointed out that, in the Notice of Competition, there was no reference to special circumstances under which ten years of professional experience after obtaining the relevant diploma would not be required. EPSO recalled that the complainant was of the view that the Notice of Competition did not expressly set out the same requirements for candidates who took a four-year university course and for candidates whose university course was more than four years. In this regard, EPSO stated that, even if it accepted, for the sake of argument, the complainant's view, the Notice of Competition certainly did not state what the complainant argued, namely, that experience acquired during the candidate's studies could be taken into account in the latter case.

2.3 In his observations, the complainant maintained his view that he had been wrongfully excluded. He also took the view that it seemed that EPSO tried to ridicule his complaint by stating that, if his logic were applied, Heads of Unit would not need any professional experience at all.

2.4 The wording of the relevant provisions of the Notice of Competition is as follows:

Point A.II.1:

"You must have (i) a level of education which corresponds to completed university studies attested by a diploma when the normal period of university education is four years or more (...) or (ii) a level of education which corresponds to completed university studies attested by a diploma and appropriate professional experience of at least one year when the normal period of university education is at least three years."

Point A.II.2:

"You must have gained at least 10 years' full time professional experience relevant to the duties concerned of which five years in management positions. This experience must have been obtained after obtaining the four-year diploma or after obtaining the three-year diploma with the one year relevant professional experience (see section A.II.1)."

2.5 The Ombudsman notes that point A.II.2 does indeed not expressly refer to a diploma obtained after more than four years of study. However, the Ombudsman recalls that, as EPSO correctly pointed out, it is settled case-law that the interpretation of legal texts must take into account the context of the provision in question as well as its purpose(6). As to the context of the provision, it has to be noted that point A.II.2 contains an explicit reference to point A.II.1, which mentions a normal period of university education of "four years or more". Furthermore, the Notice of Competition does not contain any provision indicating that the required professional experience may have been obtained before the award of a university diploma under certain circumstances. Therefore, there is no indication that it could have been EPSO's intention to make an exception to that requirement in the case of university studies of more than four years.

2.6 On the basis of these considerations, the Ombudsman takes the view that, although it would certainly have been better if point A.II.2 had also referred to a course of "four years or more", EPSO's interpretation of the Notice of Competition appears to be correct. Therefore, the Ombudsman finds no maladministration in relation to this allegation.

2.7 In view of this finding, the Ombudsman does not need to discuss the complainant's claims that the Selection Board's decision should be reviewed and that he should be admitted to the further selection procedure.

2.8 As to EPSO's argument that an isolated reading of point A.II.2 would imply that candidates who obtained their diploma upon completion of a course of more than four years would not need any professional experience at all, the Ombudsman fails to understand how EPSO arrives at this view. The first sentence of point A.II.2 makes it clear that ten years of professional experience are required without exception. Therefore, and given that the complainant never argued that the Notice of Competition had required less than ten years of professional experience, it is unclear to the Ombudsman why EPSO referred to such an argument. However, since EPSO itself stated that the complainant had never taken the view to which it had referred, the Ombudsman does not share the complainant's position that this part of the decision could have been intended to ridicule his complaint.

3 Alleged failure to communicate a decision in the language of the complaint

3.1 As to the complainant's allegation that EPSO had failed to send him its decision on his Article 90(2) complaint in the language in which he had submitted his complaint, EPSO stated that, when it sent the decision to the complainant, it informed him of the possibility of requesting a translation.

3.2 In his observations, the complainant maintained that, given that he had to make a request for a translation, the time he had in order to arrange for legal representation was reduced.

3.3 The Ombudsman recalls that it is good administrative practice to communicate decisions to citizens in the language in which they addressed the institution. He notes that EPSO has not referred to any reasons as to why it could be justified to treat candidates in selection procedures differently from other citizens in this respect. As the Ombudsman has pointed out previously(7), the mere fact that candidates have been granted the possibility to lodge complaints concerning decisions in recruitment proceedings on the basis of Article 90(2) of the Staff Regulations cannot justify any such departure from principles of good administration. Therefore, the Ombudsman does not consider it sufficient for EPSO to inform a candidate who has made use of the complaints procedure that he may request a translation of its decision. Instead, the decision itself should be communicated to the complainant in the language in which he submitted his complaint, unless it has been established that the complainant accepts that the decision can be sent to him in another language. EPSO's failure to do so in this case constitutes an instance of maladministration. A critical remark will be made in this respect.

4 Allegedly wrong information on deadline for appeals

4.1 As to the complainant's allegation that EPSO wrongfully informed him that the decision was considered to have been communicated to him as soon as he had received the original (English) version, EPSO stated that it had informed the complainant, in its letter accompanying the decision and dated 20 July 2006, that he could institute proceedings against the decision before the Civil Service Tribunal. Therefore, according to EPSO, the complainant had known that the decision was negative and that he would receive a translation which would activate the start of the period during which he could turn to the Tribunal.

4.2 In his observations, the complainant maintained his position. He added that EPSO had again tried to ridicule his complaint by stating that, even though the decision had been in English, he could have gathered that it was negative.

4.3 In order to avoid possible misunderstandings, it appears useful to clarify at the outset that what activates the start of the period during which an appeal against the Appointing Authority's decision on an Article 90(2) complaint can be lodged is the complainant's receipt of the decision in the language of the complaint. In its supplementary opinion, EPSO did not contest this fact, but explicitly confirmed it.

4.4 The complainant did not specify on what occasion he was informed by EPSO that the receipt of the original version of the decision activated the start of the period for the submission of appeals. Therefore, the Ombudsman can only base his assessment on the documents submitted to him, particularly the accompanying letter EPSO sent to the complainant along with the original of its decision on 20 July 2006. In this letter, EPSO, first, informed the complainant that the enclosed document was the decision of the Appointing Authority. EPSO then informed him that he could make an appeal against this decision within three months of receipt of the decision. In the next paragraph, EPSO informed the complainant that he could request a translation of the decision(8). Therefore, and contrary to EPSO's submission in its supplementary opinion, it did not inform the complainant that the start of the appeals period would be activated by the receipt of the decision's translation. Instead, the complainant could only reasonably understand the letter as meaning that the receipt of the decision itself activated the start of this period.

4.5 Therefore, the Ombudsman considers that, in its letter of 20 July 2006, EPSO failed to inform the complainant correctly about the period in which he could make an appeal against its decision. This constitutes an instance of maladministration.

4.6 In the Ombudsman's view, it would have been appropriate for EPSO to acknowledge the fact that the information it provided was incorrect, to correct it and to apologise to the complainant. In its supplementary opinion, EPSO corrected the information, but only in a rather oblique and cryptic manner. It did not acknowledge expressly that the information it had provided to the complainant was incorrect and it did not apologise to the complainant. Therefore, the Ombudsman considers that the instance of maladministration persists. A critical remark will be made in this respect.

4.7 As to the complainant's view that EPSO had tried to ridicule his complaint in relation to this aspect of the case, the Ombudsman has closely examined EPSO's supplementary opinion, both in its original French version and in its German translation. However, as far as he can see, the passage of the supplementary opinion to which the complainant refers does not seem to express the view that he could have challenged the decision only on the basis of knowing that it was negative. It rather appears to state that the letter accompanying the original version of the decision already gave the complainant an indication that there might be reason for him to wish to lodge an appeal, for which he would then have disposed of sufficient time after receiving of the translation of the decision. Therefore, the Ombudsman does not share the complainant's view that certain statements EPSO made in its supplementary opinion ridiculed his complaint.

5 Conclusion

On the basis of the Ombudsman's inquiries into the present complaint, he finds no maladministration as regards the complainant's allegation that he was wrongly excluded from Open Competition EPSO/AD/22/05.

However, it is necessary to make the following critical remarks in relation to the communication of EPSO's decision on the complainant's complaint under Article 90(2) of the Staff Regulations:

1. It is good administrative practice to communicate decisions to citizens in the language in which they addressed the institution. EPSO has not referred to any reasons as to why it could be justified to treat candidates in selection procedures differently from other citizens in this respect. The mere fact that candidates have been granted the possibility to lodge complaints concerning decisions in recruitment proceedings on the basis of Article 90(2) of the Staff Regulations cannot justify any such departure from principles of good administration. Therefore, the Ombudsman does not consider it sufficient for EPSO to inform a candidate who has made use of the complaints procedure that he may request a translation of its decision. Instead, the decision itself should be communicated to the complainant in the language in which he submitted his complaint, unless it has been established that the complainant accepts that the decision can be sent to him in another language. EPSO's failure to do so in this case constitutes an instance of maladministration.
2. The start of the period in which an appeal against the Appointing Authority's decision on an Article 90(2) complaint can be lodged is activated by the complainant's receipt of the decision in the language of the complaint. In its letter of 20 July 2006, EPSO failed to inform the complainant correctly about this fact. This constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ 2005 C 135A (followed by three corrigenda published in OJ 2005 C 152A, OJ 2005 C 172A and OJ 2005 C 197A respectively).

(2) "Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him (...)".

(3) EPSO referred to Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957, paragraph 50.

(4) See note 2 above.

(5) In the present case, the Notice of Competition was published in OJ 2005 C135 A.

(6) See, for example, Case T-298/02 Romeu v Commission [2005] ECR-SC I-A-295 and II-1349, paragraph 27.

(7) Decision on complaint 3553/2004/(PB)WP, available on the Ombudsman's website (http://www.ombudsman.europa.eu/decision/en/043553.htm).

(8) The original German wording of EPSO's letter is: "(...) anbei erhalten Sie die Entscheidung über Ihre (...) Beschwerde (...). Gegen die Ablehnung Ihrer Beschwerde können Sie innerhalb einer Frist von drei Monaten ab dem Tag, an dem Sie die Entscheidung der Anstellungsbehörde erhalten haben, beim Gericht für den öffentlichen Dienst der Europäischen Union Klage erheben. Eine Übersetzung der Entscheidung in die Sprache der Beschwerde kann Ihnen auf Wunsch erstellt werden. (...)".