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Decision of the European Ombudsman closing his inquiry into complaint 1592/2009/ELB against the European Personnel Selection Office

The background to the complaint

1. The European Personnel Selection Office (EPSO) organises open competitions on behalf of the European institutions for the selection of future officials.

2. The complainant applied for Open Competition EPSO/AST/69/08 in the audio-visual/multimedia field[1]. Although the complainant passed the admission tests, the Selection Board considered that he did not have an appropriate diploma and, therefore, rejected his application.

3. The complainant considered that his qualifications satisfied the condition regarding diplomas and asked EPSO to reconsider its position. EPSO confirmed the rejection of his application. The complainant then lodged a complaint with the Ombudsman.

The subject matter of the inquiry

4. The complainant alleged that EPSO wrongly considered that he did not meet the eligibility condition regarding qualifications.

5. The complainant claimed that he should be invited to the written tests.

The inquiry

6. On 2 June 2009, the complainant addressed his concerns to the Ombudsman. On 1 July 2009, the Ombudsman opened an inquiry and forwarded the complaint to EPSO, which sent its opinion to the Ombudsman. The opinion was forwarded to the complainant, who then submitted his observations on 30 September 2009.

7. On 5 February 2010, the Ombudsman requested EPSO to provide him with additional information. On 24 March 2010, EPSO replied to the Ombudsman's request. EPSO's reply was forwarded to the complainant, who submitted his observations on 17 May 2010.

The Ombudsman's analysis and conclusions

Preliminary remark

8. In his further observations, the complainant alleged that EPSO never sent him a letter on 25 June 2009. The Ombudsman notes that this allegation was not mentioned in the original complaint and was therefore not part of the present inquiry. Moreover, the complainant made no prior administrative approaches in this regard. Thus, the Ombudsman considers that it would not be appropriate to deal with this allegation in the context of the present inquiry. The complainant could, if he wishes, contact EPSO about the matter.

A. Alleged wrongful assessment of the complainant's qualifications and related claim

Arguments presented to the Ombudsman

9. The complainant applied for Open Competition EPSO/AST/69/08 (for the recruitment of assistants (AST 1) in the audio-visual/multimedia field (Conference Operators)). The Selection Board considered that his post-secondary diploma was not relevant to the field of the competition and that he did not have three years of professional experience.

10. The complainant pointed out that, on 24 June 2008, he obtained a post-secondary diploma relevant to the field of the competition ('Bachelier en techniques de l'image: finalités techniques de la cinématographie') and concluded that he therefore met the condition regarding qualifications.

11. In its opinion, EPSO stated that, according to the Notice of Competition,

"The posts to be filled require:

(i) a level of post-secondary education, attested by a diploma relevant to the field,

OR

(ii) a level of general or vocational secondary education, attested by a diploma giving access to post-secondary education followed by at least three years' professional experience relevant to the field."

EPSO noted that the complainant had the following diplomas:

• 'Certificat d'enseignement secondaire supérieur', obtained in June 2000; and

• 'Bachelier en techniques de l'image: finalité Techniques de la cinématographie', obtained in June 2008.

The Selection Board examined the list of subjects the complainant studied during his 'Bachelier en techniques de l'image' and concluded that they did not correspond to the profile of a conference operator. It considered that his studies dealt mainly with cinema and film production, while the tasks of a conference operator require technical and electronic knowledge. EPSO specified that the Selection Board considered diplomas in the following fields to be relevant: electronics; sound recording techniques; broadcasting; electro acoustics; electro technology; and image technology and control.

12. The Selection Board then examined whether the complainant met the condition set out in paragraph (ii). It noted that, although the complainant had a secondary education diploma, he only had two months of professional experience. Therefore, the Selection Board rejected his application.

13. EPSO concluded that the Selection Board complied with the provisions of the Notice of Competition. Since the complainant did not fulfil the conditions set out in the Notice of Competition, he could not be invited to take part in the written tests.

14. In his observations, the complainant explained that his 'Bachelier en techniques de l'image' is relevant to the field of the competition. He considered that he was capable of operating technical sound and image equipment in multimedia and audio-visual set ups. He outlined that EPSO listed the skills required of a conference operator[2] and explained that he attended courses in these various subjects. He attached a list of these courses[3] and concluded that his diploma should have been considered as relevant.

15. The complainant added that, in the replies he received to his requests for re-examination, he was only informed that his diploma was not relevant. No reasons were given and the Selection Board did not ask him to provide proof of the courses he attended. He specified that, in the letter he sent to EPSO on 26 March 2009, he attached the diploma supplement, which contained a list of the courses he attended.

16. According to the complainant, the title of his diploma 'Bachelier en techniques de l'image' shows that it is relevant to the field of the competition. He argued that image techniques are the same in both the audio-visual and cinematography fields. The complainant enquired with various Commission's services, which, he stated, considered that his diploma was relevant.

17. In its further opinion, EPSO explained that the complainant's application, which it received on 3 February 2009, included the following documents:

• his application form;

• the provisional diploma 'Bachelier en techniques de l'image';

• a 'Certificat d'enseignement secondaire supérieur'; and

• a copy of a document proving the complainant's nationality.

18. At EPSO's request, the complainant sent one missing page from the application form, as well as professional certificates. EPSO received these documents on 9 February 2009, and included them in the complainant's file.

19. EPSO sent the Ombudsman the following documents that the complainant submitted in support of his request for re-examination of his application:

• the provisional diploma 'Bachelier en techniques de l'image';

• a document from the 'Haute Ecole Libre de Bruxelles Ilya Prigogine';

• the supplement to the diploma;

• a 'Certificat d'enseignement secondaire supérieur'; and

• a copy of a document proving the complainant's nationality.

The Selection Board duly examined these documents in the framework of the request for re-examination. The supplement to the diploma was not attached to the complainant's initial application. However, the Selection Board took it into account.

20. In the framework of the Ombudsman's request for further information, EPSO forwarded the complainant's observations to the Selection Board. The Selection Board made the following comments:

• the complainant's studies were largely oriented towards cinema and TV production;

• the courses containing technical elements represent a minority of the courses the complainant attended and are mainly introductory courses;

• the knowledge and competencies acquired by the complainant during his studies only partially relate to two out of the ten duties mentioned in the Notice of Competition[4];

• the complainant has no knowledge or competence in the other duties linked to conference operating.

21. As regards the complainant's argument that the Selection Board failed to reason its decisions, EPSO considered that the Selection Board complied with the established case-law of the European Union courts. On 20 March 2009, the Selection Board indicated that the complainant's application did not comply with paragraph I.B.2 of the Notice of Competition. On 14 May and 25 June 2009, EPSO explained that the complainant's diploma in cinema was not "relevant" to the required duties and that his professional experience was less than the three years mentioned in the Notice of Competition.

22. As regards the complainant's argument that the Selection Board requested no additional documents from him, EPSO stated that the Selection Board can only take into account the application form and the documents provided by the candidate. The Selection Board shall not carry out research in order to verify if a candidate meets the competition requirements. Article 2(2) of Annex III of the Staff Regulations provides that a Selection Board may ask a candidate to provide additional documents if it has any doubts regarding the importance of one of these documents. This was not the case as regards the complainant's application.

23. Finally, EPSO explained that the selection boards carry out their assessments of diplomas on an ad hoc basis, taking into account the special features and requirements of each competition.

24. In his further observations, the complainant explained that he did not send the supplement to his diploma until 30 March 2009 because it was not available before that date.

25. He disagreed with the Selection Board's assessment that his studies dealt mainly with cinema and TV production. He attended only 11 out of the 36 courses in the two aforementioned fields. But he also attended 12 technical courses, which he considered relevant for the competition. Only one of them was an introductory course. According to him, he had knowledge in all ten duties listed in the Notice of Competition and showed that the courses he attended matched the list of duties.

26. The complainant noted that EPSO informed him that his diploma was not relevant to the field of the competition. However, EPSO never informed him that his diploma was not relevant not to the nature of the duties. If the Selection Board had indicated that his diploma was not relevant to the nature of the duties, he would have sent further information related to the courses he attended.

27. He spent a lot of time, energy and money trying to defend his case against EPSO and felt that he had been treated unfairly. He emphasised that his future was at stake.

The Ombudsman's assessment

28. The Ombudsman points out that, according to the established case-law of the European Union courts, the Appointing Authority and the Selection Board are bound by the wording of the Notice of Competition: "the essential function of a Notice of Competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question so as to enable them to judge whether they should apply for it."[5]

29. Furthermore, according to the established case-law, the Appointing Authority and the Selection Board enjoy a wide margin of discretion in establishing the requirements for a post, assessing candidates' qualifications, and judging whether the qualifications are sufficient for admission to the relevant competition[6]. In view of this, the Ombudsman's task is, therefore, limited to ascertaining whether the Selection Board's judgment was vitiated by a manifest error of assessment. The Ombudsman's role is not, therefore, to substitute his own judgement for that of the Selection Board.

30. The Ombudsman notes that, according to the Notice of Competition, the admissibility requirements were the following:

"(i) a level of post-secondary education, attested by a diploma relevant to the field,

OR

(ii) a level of general or vocational secondary education, attested to by a diploma giving access to postsecondary education followed by at least three years' professional experience relevant to the field."

31. The Selection Board considered that the complainant's application did not fulfil these requirements for the following reasons:

• The subjects the complainant studied during his 'Bachelier en techniques de l'image' did not correspond to the profile of a conference operator. They dealt mainly with cinema and film production, while the tasks of a conference operator require knowledge of technical and electronic subjects. The complainant only studied a few technical courses, which were mainly introductory courses; and

• After obtaining his secondary education diploma, the complainant only had two months of professional experience.

32. As regards the first requirement, the Ombudsman notes that the complainant has a university degree in image techniques with a specialisation in film-making ('Bachelier en techniques de l'image: finalités techniques de la cinématographie'). He further notes that Open Competition EPSO/AST/69/08 was organised to constitute a reserve list of conference operators (AST1), whose duties were the following:

"Conference operators responsible for operating technical sound and image equipment in multimedia/audio-visual or conference installations, whose duties will include:

- providing on-the-spot or remote control (from a central control room) for meeting and conference rooms,

- technical monitoring of image and/or sound recording of interventions made by participants (microphones, cameras, PC/DVD images),

- recording debates in digital format (video/audio server),

- providing a stand-by service for the central control room, covering the routing of A/V signals,

- assembling and placing mobile audio and/or visual equipment (e.g. cameras, wireless microphones, projectors, sound systems, screens, etc.),

- contributing to the smooth running and handling of equipment in conference rooms, including multimedia,

- facilitating the smooth running of a specific network of TFT information screens, and their operating software,

- conducting a daily check on audio-visual equipment for conference room installations,

- taking action and adjusting installations in meeting and conference rooms and central control rooms,

- selecting images from a multi-camera configuration of meetings and events, particularly with a view to broadcasting image and sound to a computer-based network (streaming) or other rooms."

33. EPSO and the complainant disagree on the relevance of the courses he attended during his 'Bachelier'. Both base themselves on the same document, namely, the supplement to the diploma. The Ombudsman observes that the Selection Board analysed this document on two separate occasions and maintained its assessment.

34. Having carefully examined the supplement to the diploma submitted by the complainant, the Ombudsman notes that the subjects the complainant studied during his 'Bachelier en techniques de l'image' do not correspond fully to the profile of a conference operator. They deal mainly with cinema and film production, while the tasks of a conference operator require very specialised knowledge of a technical and electronic nature that is specific to the role of a conference operator. He underlines that the overall subject of the complainant's diploma was film-making ('finalités techniques de la cinématographie'). The knowledge and skills acquired by the complainant during the courses he attended could indeed be useful for the post of a conference operator. However, the complainant only attended a few technical courses, which does not demonstrate that he was fully and immediately trained to work as a conference operator.

35. In light of the above, the Ombudsman considers that the Selection Board did not make a manifest error of assessment of the complainant's degree.

36. As regards the alternative requirement, EPSO stated that the complainant did not have three years of professional experience relevant to the required duties. The complainant does not contest this statement.

37. The Ombudsman agrees with EPSO that the selection boards assess candidates' qualifications in each individual competition[7].

38. He would also like to specify that, contrary to what the complainant states, no distinction should be made between the field of the competition and the duties listed in the Notice of Competition. The competition clearly aimed at recruiting conference operators, whose duties were listed under point I.A of the Notice of Competition.

39. In view of the above, the Ombudsman considers that the Selection Board remained within the bounds of the discretion it enjoys when it decided that the complainant's application did not meet the admissibility requirements. Therefore, there has been no maladministration by EPSO and the complainant's claim cannot be sustained.

40. Nevertheless, the Ombudsman would like to underline that the wording used by the Selection Board and EPSO to explain the decision to exclude the complainant from the competition (EPSO explained that the complainant's diploma in cinema was not "relevant" to the duties) may have led to a misunderstanding on the part of the complainant. The Ombudsman suggests that, when an applicant's training is partially though not sufficiently relevant for the post under consideration, the Selection Board should choose carefully the wording of its letters to candidates, replacing the term "not relevant" by "not sufficiently relevant". In the present case, this nuance may have avoided a misunderstanding. The Ombudsman will thus make a further remark below.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by EPSO.

The complainant and EPSO will be informed of this decision.

Further remark

The Ombudsman suggests that, in future, the Selection Boards should modify the wording of the letters they address to certain candidates to avoid any potential misunderstanding.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 November 2010


[1] OJ 2008 C243 A.

[2] Knowledge of electronics, sound recording techniques, broadcasting, electro acoustics, electro technology, vision technology and control.

[3] For 2005-2006: "Mathématique appliquée, optique, laboratoire d'optique, électricité, électronique appliquée, traitement du signal électronique, acoustique, initiation à l'écoute son, sensitométrie, chimie appliquée, laboratoire chimie appliquée, informatique appliquée, histoire et esthétique du cinéma, technologie image film, techniques du montage: théorie, initiation aux techniques du cinéma de fiction, initiation aux techniques du cinéma du réel, techniques du scénario: théorie, techniques de gestion de la production".

For 2006-2007: "Initiation à l'écoute du son, infographie, histoire art contemporain, économie, comptabilité et marketing, connectique appliquée, technologie image vidéo, techniques de prises vues: théorie, techniques du montage, techniques du son: théorie, techniques générales de production de fictions, techniques générales de production de documentaires, techniques générales de production de reportages TV, techniques de production multicaméras: applications, techniques du scénario: applications, techniques de gestion de la production: théorie, techniques de gestion de la production: applications."

For 2007-2008: "infographie, techniques de production multicaméras: applications, techniques générales de production cinématographiques et télévisuelles, techniques générales de production de documentaires et de reportages TV."

[4] These were "ensuring the technical follow-up of cinematography" ("assurer le suivi technique des prises de vue") and "selecting images from a multicamera configuration" ("sélectionner les images d'une configuration multicaméra").

[5] See Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 27; and Case T-237/95 Carbajo Ferrero v Parliament [1997] ECR II-429, paragraph 47.

[6] See Case T-54/91 Antunes v Parliament [1992] ECR II-1739, paragraph 39; and Case T-249/01 Boixader Rivas v Parliament [2003] ECR II-749, paragraph 29.

[7] Case 108/88 Juan Jaenicke Cendoya v Commission [1989] ECR 2711, paragraph 21.