Decision of the European Ombudsman on complaint 1641/2007/VIK against the European Commission

Strasbourg, 1 July 2008

Dear Mr X,

On 19 June 2007, you submitted a complaint to the European Ombudsman against the European Commission's Directorate-General for Personnel and Administration concerning your application to take part in two competitions for temporary agents.

On 26 July 2007, I forwarded the complaint to the President of the Commission. The Commission sent the French original of its opinion on 15 October 2007 and a translation into English on 29 October 2007. I forwarded the opinion to you with an invitation to make observations, if you so wished, by 15 December 2007. No observations have been received from you.

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, in summary, as follows:

The complainant, a Maltese national, applied to take part in the following two competitions for temporary agents organised by the European Commission: (i) Competition COM/TA/DIGIT/07/01, which concerned the recruitment of officials in grade AD 8 (hereafter referred to as the "grade AD 8 competition"), and (ii) Competition COM/TA/DIGIT/07/02, which concerned the recruitment of officials in grade AD 5 (hereafter referred to as the "grade AD 5 competition"). These applications were rejected by the Commission's Directorate-General for Personnel and Administration.

On 5 June 2007, the Commission informed the complainant that his application concerning the grade AD 8 competition was inadmissible, because the supporting documents required to prove his employment history "were missing". On the same date, the complainant sent an e-mail to the Commission challenging the latter's decision concerning the admissibility of his application. The complainant explained that he had furnished copies of his pay slips for December 1996, which had been his first month of employment, and for February 2007, which was the latest salary he had received at the time of the applications. He further explained that the different posts he had occupied during the period of 1996 - 2007 had all been with the same employer and that, therefore, the information he had provided should have been sufficient to prove his employment history and fulfil the relevant requirements set out in the notice of competition. The complainant further noted that he could not jeopardise his position at his current workplace by asking his employer to provide him with a document confirming his employment history, unless he could be sure that he would get the post for which he was applying. In the light of these clarifications, the complainant requested that the Selection Committee reconsider his application by also giving him the possibility to present alternative supporting documents, if the documents he had supplied were to be deemed insufficient by it.

On 12 June 2007, the Chairman of the Selection Committee informed the complainant that the Committee maintained its view that his application did not fulfil all the requirements set out in the notice of competition, because the complainant had only attached to his application payslips for December 1996 and February 2007 and had not attached a full statement of employment. Therefore, the required minimum period of professional experience of nine years for this competition had not been proven.

On 12 June 2007, the complainant received an identical response as regards his application concerning the grade AD 5 competition, since the required two years of professional experience had similarly not been proven.

On 14 June 2007, the complainant informed the Commission that he would like to appeal against these decisions, because the types of documents requested in order to prove his employment history had not been explicitly specified, and the pertinent instructions to applicants left some room for different interpretations. The complainant also attached to this e-mail an official document from the Human Resources Department of his employer, which confirmed that he had ten and a half years of experience in IT and IT management that had been acquired in different departments of the same employer.

On 18 June 2007, the complainant was informed that the Selection Committee could only take into account the information given by the candidates in their application forms and the supporting documents that they had provided with these forms. Under no circumstances could the Committee accept any documents supplied by the candidates after the closing date for the submission of applications. The Committee had followed this principle in order to avoid discrimination between the candidates.

In his complaint to the Ombudsman, the complainant made the following allegations and claims:

(1) The complainant alleged that the Commission failed to indicate clearly what documents are deemed appropriate to prove candidates' employment history and professional experience. By not accepting the documents provided by the complainant, the Commission has therefore wrongly disqualified him and denied him the opportunity to participate in the competitions.

(2) The complainant alleged that the Commission denied him the right to appeal against the decisions of the Selection Committee concerning his applications and wrongly refused to accept additional documents proving his professional background.

The complainant claimed that the Commission should (i) accept the further evidence regarding his employment that he submitted on 14 June 2007 and (ii) readmit him to both competitions.

THE INQUIRY

The Ombudsman's approach

On 26 July 2007, the Ombudsman opened an inquiry with respect to the complainant's first allegation and the related second part of his claim (point (ii) above). As regards the complainant's second allegation and the first part of his claim (point (i) above), the Ombudsman considered that, in accordance with Article 195 of the Treaty establishing the European Community, there were insufficient grounds for an inquiry, since the complainant had not been denied the right to appeal and since also the Commission's refusal to accept further evidence after the closing date for applications so as to avoid discrimination appeared to be reasonable and in line with Article 5 of the European Code of Good Administrative Behaviour(1).

The Commission's opinion

The Commission's opinion can be summarised as follows:

The notices for both competitions clearly stated that applicants had to demonstrate, in addition to the required minimum qualifications, a minimum of nine years of professional experience for the grade AD 8 competition and of two years of professional experience for the grade AD 5 competition. In the Commission's view, the terms used in the competition notices and application forms were sufficiently clear and precise to enable the complainant and all other candidates to provide the required supporting documents, including the ones related to professional experience.

The Commission pointed out that the complainant had signed the declaration contained in the application forms in which he confirmed that he had attached, among other documents, "statements of employment". Furthermore, when the complainant had submitted his applications, he received an automatic acknowledgement of receipt drawing his attention to the fact that his applications had to be complete in order to be accepted by the Selection Committee.

The Commission took the view that, given that the complainant had submitted pay slips only for December 1996 and February 2007, it was impossible to ascertain whether he had the required professional experience, as the documents presented were not sufficient in order to establish that there had been continuous employment for the long period of more than ten years that had elapsed between these two dates.

In view of the fact that it did not receive, before the closing date for the submission of applications, a statement of employment from the complainant's employer, a copy of his employment contract, annual fiscal certificates or any other document proving that he had been employed continuously between December 1996 and February 2007, the Commission submitted that it had had no choice but to reject the complainant's applications in both competitions.

The Commission finally pointed out that this approach had been applied in an identical manner for all candidates in order to ensure equal treatment and that the Selection Committee had taken into consideration only those applications that were complete and that contained the necessary documentation to demonstrate without any doubt that all the conditions of eligibility had been met.

The Commission submitted that there had therefore been no maladministration in the present case.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 The scope of the Ombudsman's inquiry

1.1 The present complaint was submitted to the European Ombudsman by a Maltese citizen and concerns his participation in Competition COM/TA/DIGIT/ 07/01 and in Competition COM/TA/DIGIT/07/02. His applications in the above competitions were rejected by the Commission as incomplete and therefore inadmissible. The Commission considered that the complainant had not provided sufficient evidence to establish that he had the professional experience required by the notices of competition. It appears that the complainant had furnished copies of his pay slips for December 1996, which had been his first month of employment, and for February 2007, which was the latest salary he had received at the time of the applications. In his complaint to the Ombudsman, the complainant submitted two allegations. First, the complainant alleged that the Commission had failed to indicate clearly what documents were deemed appropriate to prove a candidate's employment history and professional experience. By not accepting the documents provided by the complainant, the Commission had therefore wrongly disqualified him and denied him the opportunity to participate in the competitions. Second, the complainant alleged that the Commission had denied him the right to appeal against the decisions of the Selection Committee as regards his applications and wrongly refused to accept additional documents proving his professional background. The complainant claimed that the Commission should (i) accept the further evidence regarding his employment that he submitted on 14 June 2007 and (ii) readmit him to both competitions.

1.2 The Ombudsman opened an inquiry only with respect to the complainant's first allegation and the related second part of his claim, which is that the Commission should readmit him to both competitions (point (ii) above). As regards the complainant's second allegation and the first part of his claim, which is that the Commission should accept the further evidence provided by the complainant on 14 June 2007 (point (i) above), the Ombudsman considered that there were insufficient grounds for an inquiry (see Article 195 of the Treaty establishing the European Community), as the complainant had not been denied the right to appeal and given that the Commission's refusal to accept further evidence after the closing date for applications so as to avoid discrimination appeared to be reasonable and in line with Article 5 of the European Code of Good Administrative Behaviour(2).

2 The Commission's alleged failure to indicate clearly the documents required as proof of an applicant's professional experience and to accept the documents submitted by the complainant

2.1 The complainant alleged that the Commission had failed to indicate clearly what documents were deemed appropriate as proof of an applicant's employment history and professional background and to accept the documents he had submitted. In his view, the types of documents that had been requested were not explicitly specified. Given that he had been employed by the same employer for a period of more than 10 years, the complainant considered that copies of his (i) first pay slip and (ii) his latest pay slip at the time of sending the application should have been sufficient to prove his employment history. By not accepting these documents, the Selection Committee had wrongly disqualified him and denied him the right to take part in the competitions in question. Consequently, the complainant claimed that he should be readmitted to these competitions.

2.2 In its opinion, the Commission took the view that the terms used in the competition notices and in the application forms were sufficiently clear and precise in order to enable the complainant and other applicants to prove that all the conditions of eligibility had been met. The Commission pointed out that it had no choice but to reject the complainant's application in both competitions as inadmissible, as he had not provided, before the closing date for the submission of applications, a "statement of employment" or any other proof of continuous professional experience, such as a copy of the employment contract or annual fiscal certificates. The Commission noted that the copies of pay slips for services rendered in December 1996 and February 2007 were not sufficient in order to establish that there had been a period of continuous professional employment longer than the minimum required for each of the competitions.

2.3 The Ombudsman constantly takes the view that principles of good administration require that institutions should provide the most accurate information possible about the conditions of eligibility for a post. This information should enable the candidate to determine what supporting documents are important for the competition and must therefore be attached to the application form(3).

2.4 In the present case, the Commission's competition notices (calls for the selection of temporary staff) required candidates to have two years of professional experience for Competition COM/TA/DIGIT/07/02 and nine years of professional experience for Competition COM/TA/DIGIT/07/01.

The competition notices provided that applicants had to present the supporting documents that were indicated in the application forms. The application forms in both competitions, which were identical, required applicants to submit the following supporting documents:

"Proof of identity and nationality, diploma(s) or certificate(s) required, statements of employment and, where appropriate, particular certificates required by the selection notice".

2.5 The Ombudsman notes that, in the section related to professional experience (section 7) of his application forms, the complainant indicated that he had been employed for the last 10 years by the same employer. The complainant further listed the various posts he had occupied during that period. It is undisputed that the only documents that the complainant submitted to the Commission in order to confirm the information he had provided in his application forms were a copy of his first pay slip from December 1996 and his most recent pay slip from February 2007. In the Ombudsman's view, the evidence submitted by him was clearly sufficient to prove that he had been employed in December 1996 and in February 2007, respectively. However, the documents submitted to the Commission were insufficient to prove that the complainant had the required minimum number of years of professional experience, since the said two payslips did not prove that he had worked for the said employer between December 1996 and February 2007.

2.6 In view of the above, the Ombudsman considers that the assessment made by the Selection Committee was in accordance with the wording of the competition notices.

2.7 The complainant argued that he could not have jeopardised his position at his current workplace by asking his employer to provide him with a document confirming his employment history for the purposes of a job application, unless he could be sure that he would be offered the post for which he was applying. In its opinion, the Commission also referred to other documents, which could have been regarded as proof of a candidate's professional experience and which, consequently, could have been submitted by the complainant. In particular, the Commission mentioned that copies of the complainant's employment contracts, annual fiscal certificates or any other document proving that he was continuously employed between 1996 and 2007 would have been sufficient. The Ombudsman notes that the presentation of these documents would not have required any involvement on the part of the complainant's employer in the application process.

2.8 Given that the requirement concerning professional experience was clearly stipulated in the competition notices and, in view of the fact that no adequate proof to that effect was provided by the complainant, the Ombudsman takes the view that there has been no maladministration by the Commission in the present case. He thus finds that the related claim must fail.

2.9 The Ombudsman considers, however, that, in order to avoid any possible misunderstanding, it would be useful if the Commission could consider providing, in future competitions, further information on the documents that candidates could or should submit in order to prove their professional experience. A further remark to that effect will be made below.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

FURTHER REMARK

The Ombudsman considers that, in order to avoid any possible misunderstanding, it would be useful if the Commission could consider providing, in future competitions, further information on the documents that candidates could or should submit in order to prove their professional experience.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(2) The Code is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(3) Decision of the European Ombudsman on complaint 1313/2005/IP against EPSO, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu).