Decision of the European Ombudsman on complaint 2524/2007/OV against the European Personnel Selection Office

Strasbourg, 2 July 2008

Dear Mrs B.,

On 2 October 2007, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your participation in Open Competition EPSO/AD/94/07.

On 24 October 2007, I forwarded the complaint to the Director of EPSO which sent its opinion on 8 January 2008. I forwarded it to you with an invitation to make observations by 29 February 2008. No observations were received from you by that date.

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 of the case were, in summary, as follows:

The complainant wanted to participate in Open Competition EPSO/AD/94/07 (Administrators (AD5) in the field of information, communication and the media, Official Journal C 45 A of 28 February 2007), which was organised by the European Personnel Selection Office ("EPSO"). The closing date for the online registration was 28 March 2007. The complainant registered on 2 March 2007. In the electronic registration form for the Competition, applicants had to indicate their choice concerning the "main language". The complainant did not understand that "main language" meant the applicants' "native language". Given that all correspondence took place in English and that she had already indicated that she had Dutch nationality, the complainant chose English instead of Dutch under "main language". As her second language, the complainant chose German. EPSO concluded that the complainant's mother tongue was English, and as candidates had to pass the admission tests in their second language, the complainant, on the day of the test, received the test in German. The complainant, upon seeing the test welcome sheet in German, immediately decided not to take part in the test. However, she did not get the chance to sit the test in English instead. She then left the test centre, without having seen the substance of the test.

The complainant complained to EPSO which attributed the fault to the complainant. The complainant however pointed out that "main language" could be interpreted in various ways. According to the complainant, EPSO should have indicated instead "language in which you want to sit the test" or "native language". In its reply of 31 May 2007 to her complaint(1), EPSO confirmed its previous decision not to allow the complainant to change the language of the test. EPSO pointed out that the Notice of Competition clearly stated that candidates are responsible for consulting their EPSO profile, for keeping track of the progress of the Competition, and for checking the information relevant to their application at every stage. The Notice also stated that languages chosen by the candidates may not be changed after the deadline for online registration. EPSO stated that, unfortunately, the complainant had not checked her language choice in her EPSO profile before the closing date for the online registration. EPSO underlined that candidates can easily change their languages before the closing date.

Because of an administrative oversight (the Notice of Competition had been published only in the English, French and German editions of the Official Journal and not in the other 19 official languages), EPSO later decided to re-open the Competition and to provide for a new deadline for applications, namely, 18 July 2007. The amendment to the Notice of Competition was published in Official Journal C 136 A of 20 June 2007. On 25 June 2007, the complainant wrote to EPSO explaining the problems she had encountered with the meaning of the term "main language" in the previous registration and asked whether she could register again now that the registration for the Competition had been re-opened. On 26 June 2007, EPSO replied that, since the complainant had already registered before, she could not apply again. However, the complainant registered again before the new deadline of 18 July 2007. On 23 July 2007, EPSO informed the complainant that it would not consider the complainant's second application and that it would delete it because the amendment published in the Official Journal clearly stated that:

"candidates whose application has already been registered at the date of publication of the present notice may not apply again: this applies not only to candidates who have already sat the test, but also to candidates who have applied but have not sat the admission test".

The complainant therefore considered that she had been treated unfairly on two occasions: (i) when she was unfairly excluded from the Competition, although EPSO was responsible for the fact that the term "main language" could be interpreted in multiple ways; and (ii) when the Competition was re-opened, she was not given a second chance to participate because she had already registered earlier.

On 2 October 2007, the complainant lodged the present complaint with the Ombudsman. The complainant's allegations and claims can be summarised as follows:

Allegations

(1) EPSO's decision of 31 May 2007 not to allow the complainant to change her language for participating in Open Competition EPSO/AD/94/07, after she registered for the wrong language on the electronic registration form, was unfair.

(2) EPSO's decision of 23 July 2007 not to allow the complainant to apply again for the Competition, even though it had been re-opened and even though she had not participated in it earlier, was unfair.

(3) EPSO's position (contained in its reply of 31 May 2007) that the complainant had not carefully checked her language choice and that she would be at fault was unfair.

Claims

(1) EPSO should give the complainant a fair chance to participate in the first round of Open Competition EPSO/AD/94/07, given that she had not seen the test before.

(2) EPSO should change the electronic registration form with regard to the language choice, so that mistakes by other candidates can be avoided in the future.

THE INQUIRY

EPSO's opinion

EPSO made, in summary, the following comments:

The facts

The complainant was a candidate for Open Competition EPSO/AD/94/07 which was published in Official Journal C 45 A of 28 February 2007. Later, an amendment to the Notice of Competition was published on 20 June 2007.

When the Competition was published, the Notice of Competition stated, in point 1.A.2, that candidates:

"must have:

- main language (language 1)

a thorough knowledge of one of the official languages of the European Union, and

- second language (language 2 - must be different from your main language)

a satisfactory knowledge of English, French or German.

You must specify the language you choose for the access tests and the competition tests in your online registration (English, German or French: language 2). This choice may not be changed after the deadline for online registration (28 March 2007)".

Moreover, in point 1.B, it was stated that "[y]ou will take the admission tests in English, German or French (language 2)".

By letter of 18 April 2007 published in her profile, the complainant was informed that her candidature for Open Competition EPSO/AD/94/07 had been registered properly and that she could reserve the date and the hour when she wanted to take the admission tests (between 23 May and 20 June 2007) and make her choice among the examination centres located throughout the 27 Member States.

By letter of 27 April 2007, EPSO confirmed to the complainant her wish to sit the exam in Amsterdam on 24 May 2007. When registering electronically, the complainant had indicated that she had Dutch nationality, English as her "main language" and German as her "second language".

By e-mail of 25 June 2007, the complainant informed EPSO that, because of an error during the registration of her candidature, she had not been able to pass the admission tests. When she noticed that the first test was in German and not in English, she proceeded to the annulment of the test on the screen. The complainant mentioned in her e-mail that she had not understood the exact meaning of "main language" when registering for the Competition. She thus asked to be allowed to register again for the Competition, considering that it had been re-opened and that in fact she had not sat the tests.

EPSO replied to the complainant on 26 June 2007, recalling the conditions of the Notice of Competition with regard to the use of languages for the various tests and drawing her attention to the fact that, for the choice of the main language, a menu appeared showing all the languages of the Member States. EPSO recalled that the choice of the language could not be modified after the registration deadline (28 March 2007). EPSO also drew the complainant's attention to an important point of the amendment published on 20 June 2007, namely:

"candidates whose application has already been registered at the date of publication of the present notice may not apply again: this applies not only to candidates who have already sat the test, but also to candidates who have applied but have not sat the admission test".

Given that the complainant had already registered her candidature at the date of the publication of the Competition, she was thus not authorised to apply a second time for the Competition.

Comments on the complainant's allegations and claims

EPSO stated that, as regards the choice of languages, one should refer to the provisions of the Notice of Competition where it was indeed indicated that candidates needed to have a thorough knowledge of one of the official languages of the EU (main language - language 1) and a satisfactory knowledge of English, French or German (second language - language 2), which needed to be different from the main language.

As indicated in the Notice of Competition, the admission tests were to be held in the second language (English, French or German) chosen by the candidate in the registration form. The provisions of the Notice of Competition were clear and unambiguous. They mentioned that, before completing the registration form, every candidate should read the provisions of the Notice of Competition which contained all the details concerning the required linguistic knowledge and the choice of the languages for the various tests. When registering, a menu appeared for the choice of the main language allowing the candidate to choose one of the 23 languages of the EU, whereas for the second language the choice was limited to the three languages. Moreover, at the moment of registering, a small icon appeared on the screen informing candidates of the possibility of having recourse to technical aid which referred to the provisions of the Notice of Competition.

Therefore, before registering, a simple reading of the Notice of Competition would have allowed the complainant to understand that the language of the admission test would be the second language chosen when registering, which was necessarily limited to one of the three languages. As the Notice of Competition also indicated, it was not possible to change the choice of the languages after 28 March 2007. EPSO has thus acted in accordance with the provisions of the Notice of Competition.

The amendment which was published on 20 June 2007 re-opened the time-limit for registering for candidates who had not been able to be informed about the Competition (which had been published solely in English, French and German) due to the absence of a purely informative notice which was published in such cases in all the other linguistic versions of the Official Journal of the same day.

This amendment had however no consequence for candidates who had already registered and for whom the initial Notice of Competition remained unchanged. The amendment did not allow candidates who had already registered before 28 March 2007 to present a second candidature, even in the event that they had not participated in the admission tests. The fact that the complainant, who had registered before this deadline, did not take part in the admission tests did not allow her to introduce her candidature a second time. The amendment clearly provided that:

"candidates whose application has already been registered at the date of publication of the present notice may not apply again: this applies not only to candidates who have already sat the test, but also to candidates who have applied but have not sat the admission test".

Since the complainant was in this situation, a second registration for the Competition was impossible.

The complainant indicated in her complaint that she had not understood that "main language" referred to "mother tongue", and that therefore she considered that the main language was the one to be used for the admission tests. According to the complainant, the error she made in the choice of the main language and second language was due to the way in which the registration form was drafted. EPSO however recalled that, before registering, candidates had to become cognisant of the conditions of the Competition which were explained in detail in the Notice of Competition. The latter was drafted in such a way that the language of the admission tests could only be the second language (namely, English, French or German): Point I.B of the Notice of Competition stated that: "[y]ou will take the admission tests in English, German or French (language 2)". The registration form and the Notice of Competition could not be dissociated from each other.

On the basis of the above elements, EPSO - which has the obligation, vis-à-vis all candidates, to respect strictly the Competition procedure as published in the Notice of Competition - is in a position neither to give another chance to the complainant to pass the tests by allowing her to change the language, nor to accept a second registration for the Competition.

All candidatures were treated in accordance with the principle of equal treatment and EPSO could not derogate from it.

The complainant's observations

No observations were received from the complainant by the date set for that purpose.

THE DECISION

1 The alleged unfairness in EPSO's refusal to allow the complainant to change the language for taking the admission test

1.1 The complainant wanted to participate in Open Competition EPSO/AD/94/07 (Administrators (AD5) in the field of information, communication and the media, OJ C 45 A of 28 February 2007), which was organised by the European Personnel Selection Office ("EPSO"). The closing date for the online registration was 28 March 2007. The complainant registered on 2 March 2007. In the electronic registration form for the Competition, applicants had to indicate their choice concerning the "main language". The complainant did not understand that the term "main language" referred to the applicants' "native language". Given that all correspondence took place in English and that she had already indicated that she had Dutch nationality, the complainant chose English instead of Dutch under "main language". The complainant chose German as the second language. EPSO concluded that the complainant's mother tongue was English, and, as candidates had to pass the admission tests in their second language, the complainant, on the day of the test, received the examination paper in German. The complainant, upon seeing the test welcome sheet in German, decided immediately not to take part in the test. However, she did not get the chance to sit the test in English instead. She then left the test centre, without having seen the substance of the test. The complainant complained to EPSO, pointing out that "main language" could be interpreted in various ways. According to the complainant, EPSO should have indicated instead "language in which you want to sit the test" or "native language". In its reply of 31 May 2007 to her complaint, EPSO confirmed its previous decision not to allow the complainant to change the language of the test. In her complaint to the Ombudsman, the complainant alleged that EPSO's decision of 31 May 2007 not to allow her to change her language for participating in the Competition, after she registered in the wrong language on the electronic registration form, was unfair.

1.2 In its opinion, EPSO first recalled the facts of the case. It then went on to state that, as regards the choice of languages, one had to refer to the provisions of the Notice of Competition. These indicated that candidates needed to have a thorough knowledge of one of the official languages of the EU (main language - language 1) and a satisfactory knowledge of English, French or German (second language - language 2) which needed to be different from the main language. As indicated in the Notice of Competition, the admission tests were to be held in the second language (English, French or German) chosen by the candidate in the registration form. The provisions of the Notice of Competition were clear and unambiguous. They mentioned that, before completing the registration form, every candidate should read the provisions of the Notice of Competition which contained all the details concerning the required linguistic knowledge and the choice of the languages for the various tests. When registering, a menu appeared for the choice of the main language allowing the candidate to choose one of the 23 languages of the EU, whereas for the second language the choice was limited to the three languages. Therefore, before registering, a simple reading of the Notice of Competition would have allowed the complainant to understand that the language of the admission tests would be the second language chosen when registering. As the Notice of Competition also indicated, it was not possible to change the choice of the languages after 28 March 2007. EPSO has thus acted in accordance with the provisions of the Notice of Competition.

1.3 The Ombudsman notes that the Notice of Competition provided, in point 1.A.2, that candidates:

"must have:

- main language (language 1)

a thorough knowledge of one of the official languages of the European Union, and

- second language (language 2 - must be different from your main language)

a satisfactory knowledge of English, French or German.

You must specify the language you choose for the access tests and the competition tests in your online registration (English, German or French: language 2). This choice may not be changed after the deadline for online registration (28 March 2007)".

1.4 Before dealing with the complainant's allegation, it appears useful to underline that the reason for the present complaint appears to be that the complainant wrongly understood the term "main language". It appears that the complainant understood "main language" as referring to the language best mastered by the candidates (in her case English) after their mother tongue. According to the complainant, her misinterpretation was based on the fact that the term "main language" was open to different interpretations. In this respect, the Ombudsman notes that the above-quoted text appeared under the section of the Notice of Competition that dealt with knowledge of languages (next to the other conditions concerning, among other, the qualifications, the nationality, the military service) in the framework of the eligibility for the Competition. The Ombudsman also notes that, when registering, candidates had a choice between the 23 official languages of the EU for their "main language". It was further clear from the Notice of Competition that the second language needed to be English, French or German and that it had to be different from the main language. It was also clear that the admission tests were to be held in one of these three languages. If the complainant chose English as her main language, she therefore ought to have been aware that she would not be able to sit the admission tests in this language. The Ombudsman does therefore not consider that the term "main language (language 1)" was ambiguous.

1.5 It appears from the Notice of Competition that the deadline for registering and for choosing the languages for the tests was 28 March 2007 and that, after that date, the choice of languages could no longer be changed. Before that date, according to EPSO's letter of 31 May 2007, it would still have been possible to change the choice of languages. It further appears that, when registering electronically and having to choose between the languages, a menu appeared giving the candidates, as regards the "main language", a choice among 23 official languages of the EU, including Dutch. The complainant, who registered on 2 March 2007, chose English as "main language" and German as "second language". It further appears that, before the deadline of 28 March 2007, the complainant did not change her choice of languages. It was only on 24 May 2007, when the complainant attended the admission tests in Amsterdam, that she realised that she had made the wrong choice of languages.

1.6 On the basis of the above facts and the provisions of the Notice of Competition, it appears that, after 28 March 2007, it was no longer possible for the complainant to change her choice of languages. In these circumstances EPSO's decision of 31 May 2007, refusing the complainant the possibility to change her languages for participating in the Competition, was in accordance with the provisions of the Notice of Competition. EPSO's decision was not unfair towards the complainant. No instance of maladministration by EPSO was therefore found with regard to this aspect of the case.

2 The alleged unfairness in EPSO's refusal to allow the complainant to register again

2.1 The complainant alleged that EPSO's decision of 23 July 2007 not to allow her to apply again for the Competition, although it had been re-opened and she had not participated earlier in it, was unfair.

2.2 In its opinion, EPSO stated that the amendment to the Notice of Competition published in the Official Journal of 20 June 2007 which re-opened the deadline for registering for the Competition did not allow candidates who had already registered before 28 March 2007 to present a second candidature, even in the event that they had not participated in the admission tests. The fact that the complainant, who had registered before this deadline, did not take part in the admission tests did not allow her to introduce her candidature a second time. The amendment clearly provided that:

"candidates whose application has already been registered at the date of publication of the present notice may not apply again: this applies not only to candidates who have already sat the test, but also to candidates who have applied but have not sat the admission test".

Since the complainant was in this situation, a second registration for Competition EPSO/AD/94/07 was impossible.

2.3 The Ombudsman notes that, on 24 May 2007, the complainant entered the examination centre in Amsterdam to take the test but, when she realised that she had made the wrong choice of language for the admission test, she decided not to participate any further in the test and left the examination centre. The Ombudsman notes that the amended Notice of Competition published on 20 June 2007 provided that:

"candidates whose application has already been registered at the date of publication of the present notice may not apply again: this applies not only to candidates who have already sat the test, but also to candidates who have applied but have not sat the admission test".

It appears from this statement that the only criterion for being able to register for the Competition by 18 July 2007 - which was the new deadline - was whether candidates had already registered before or not. Whether candidates who had registered before actually sat the admission tests or not was not relevant in this regard. Given that the complainant had registered by 28 March 2007, she was not allowed, on the basis of the amended Notice of Competition, to register again. The Ombudsman therefore does not need to address a question raised by the complainant and described by her as being decisive in determining whether she should be allowed to still participate in the Competition. That question was whether the complainant, by going to the examination centre to take the test, but not seeing the substance of the test and leaving the examination centre immediately, "sat" the admission test or not.

2.4 On the basis of the above considerations, the Ombudsman considers that EPSO's decision of 23 July 2007 not to allow the complainant to apply again for the Competition was in accordance with the amended Notice of Competition. Considering that the Notice of Competition was not ambiguous and that the fact that the complainant registered for the wrong main and second languages appears to be attributable only to herself, the Ombudsman does not consider that the decision not to allow her the possibility to register again was unfair. No instance of maladministration by EPSO was therefore found with regard to this aspect of the case.

3 The alleged unfairness of EPSO's position in its reply of 31 May 2007

3.1 The complainant alleged that EPSO's position, contained in its reply of 31 May 2007, that she had not carefully checked her language choice and that she was at fault was unfair.

3.2 In its opinion, EPSO recalled that the provisions of the Notice of C ompetition were clear and unambiguous and that, before registering, candidates had to read the provisions of the said Notice which contained all the details concerning the required linguistic knowledge and the choice of languages for the various tests.

3.3 The Ombudsman notes that, in its reply of 31 May 2007 confirming its decision not to allow the complainant to change her choice of languages, EPSO stated that the reasons for its decision were the following:

"Open competition EPSO/AD/94/07 was published on 28 February 2007. Around 12 000 candidates applied before the closing date for the online registration, i.e., 28 March 2007. It appears from our IT-database that [the complainant] registered on 2 March 2007, more than 3 weeks before the deadline. The notice of competition clearly states that candidates are responsible for consulting their EPSO profile to keep track of the progress of the competition and to check the information relevant to their application at every stage. The notice also states that the languages chosen by the candidates may not be changed after the deadline for online registration. Unfortunately [the complainant] has not checked her language choice in her EPSO profile before the closing date for online registration. In this context, I wish to underline that candidates can easily change their languages before the closing date. Given the above, I trust you understand the position of EPSO in this matter".

3.4 The Ombudsman notes that, in this letter which was addressed to the Deputy Secretary-General of the Dutch Ministry of the Interior whom the complainant had contacted, EPSO merely recalled the provisions of the Notice of C ompetition. Although the letter points out that the complainant could have checked (and changed) the choice of languages in her EPSO profile before the deadline for registration, there is nothing in the letter which refers to a fault committed by the complainant or could be understood as attributing blame to her. On the basis of these considerations, the Ombudsman does not consider that the position taken by EPSO in this letter was unfair.

4 The claim that the complainant should be given a chance still to participate in the Competition

4.1 The complainant claimed that EPSO should give her a fair chance to participate in the first round of the Competition, given that she had not seen the test before.

4.2 In its opinion, EPSO stated that it is under the obligation, with regard to all candidates, to respect strictly the Competition procedure as published in the Notice of Competition. It was therefore not in a position either to give another chance to the complainant to take the tests by allowing her to change the language, or to register a second time for the Competition. All candidatures were treated in accordance with the principle of equal treatment and EPSO could not derogate from it.

4.3 Considering the conclusion in point 2.4 above that there was no maladministration by EPSO with regard to its decision not to allow her to apply again for the Competition, the complainant's claim should be rejected.

5 The claim that the electronic registration form should be changed

5.1 The complainant claimed that EPSO should change the electronic registration form with regard to the language choice, so that, in the future, mistakes by other candidates can be avoided.

5.2 EPSO stated that the provisions of the Notice of Competition were clear and unambiguous.

5.3 The Ombudsman has already found in point 1.4 above that the condition mentioned in the eligibility section of the Notice of Competition that candidates needed to possess a thorough knowledge of one of the official languages of the EU (namely the "main language (language 1)") was not ambiguous. On the basis of these considerations, the Ombudsman considers that the complainant's claim should be rejected.

6 Conclusion

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

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The reply was in fact addressed to the Dutch Ministry of Interior Affairs, which had written to EPSO on behalf of the complainant on 29 May 2007.