Decision of the European Ombudsman closing the inquiry into complaint 1996/2014/DK against the European Personnel Selection Office

The background to the complaint

1. The complaint took part in Open Competition EPSO/AST/129/13 for the selection of assistants (AST 3) in the field 'legal matters'. In March 2014, the complainant sat the computer-based admission tests.

2. On 3 July 2014, EPSO informed the complainant that although he had obtained the minimum score to be admitted to the next stage, he was excluded from the competition on the basis that he does not have "at least three years' professional experience relevant to the nature of the duties, acquired after the diploma giving access to the competition was obtained".

3. On 10 July 2014, the complainant made a request for review to EPSO to challenge the finding that he does not have the required professional experience. He stated that indeed he has the relevant professional experience as required by the notice of competition.

4. On 20 August 2014, EPSO acknowledged receipt of his request and stated that it would be submitted to the selection board for review.

5. On 27 August 2014, the complainant inquired with EPSO as to when he could expect a reply to his request. On 22 September 2014, EPSO stated that "the Selection Board's decision could be communicated in October / November".

6. On 19 November 2014, the complainant again asked EPSO about when a decision could be expected. On 21 November 2014, EPSO replied: "The review process has gathered some additional delay for which EPSO wishes to apologise. The decision could be expected (not confirmed yet) in December."

7. On 25 November 2014, the complainant complained to the Ombudsman that EPSO had failed to deal with his request for review.

The inquiry

8. The Ombudsman opened an inquiry by carrying out an analysis of the information submitted to her by the complainant and the replies given to her by EPSO. Further to that analysis, the Ombudsman decided to continue with her inquiry and asked EPSO to address the complainant's concerns about its failure to deal with his request for review.

9. Following EPSO's response to the complainant's request for review, the Ombudsman invited the complainant to submit observations on that response, which the complainant did on 15 January 2015.

Allegation that EPSO failed to deal with the complainant's request for review

Arguments presented to the Ombudsman

10. The complainant submitted a request for review to EPSO given that he considered that he had the required professional experience. He noted that Point 3 of Annex 3 of the Notice of Competition clearly required candidates to have "at least 3 years' professional experience relevant to the nature of the duties". He insisted that he clearly stated in his application that he had 48.5 months of relevant professional experience. He thus asked EPSO to review his application.

11. In its reply, EPSO apologised for the delay in dealing with his request for review, stating that it was due to a heavy workload in the previous few months.

12. EPSO then summarised the case-law of the EU courts as regards the powers and discretion of selection boards in open competitions. It pointed out that, in the present case, the Selection Board drew up the criteria for assessing the specific eligibility conditions, as published in the Notice of Competition[1], which had been defined on the basis of the skills required for the posts to be filled and of the interest of the services of the EU institutions.

13. EPSO stated that, following the complainant's request, the Selection Board reviewed his application and the statements made therein. Following that review, the Selection Board confirmed its initial analysis, namely that the complainant's diplomas, as listed in his application, had not been considered by the Selection Board as "directly relevant" to the legal field. Therefore, in the absence of such qualifications, Points 2 and 3 of Annex 3 of the Notice of Competition combined required that the complainant should have had at least 6 years of professional experience to fulfil the eligibility criteria, and not only 3 years. The complainant's application, however, showed that he has 48.5 months professional experience. The Selection Board therefore upheld its initial decision.

14. In his observations, the complainant underlined that EPSO should indicate clear deadlines in its replies and decisions and should comply with those deadlines. In his view, candidates should not wait for months to be informed about EPSO's decisions.

15. The complainant rejected the Selection Board's finding that his diplomas could not be considered as fulfilling the requirement of "Post-secondary education attested by a diploma in the legal field". He stated that both his undergraduate and graduate diploma in 'Political science and International relations' encompassed "roughly a third of the exams in the legal field" and his "dissertations were both in International Law".

16. Finally, as regards the discretionary power of selection boards, the complainant argued that it should not replace the duty of selection boards to follow precise criteria and to give explanations as to why certain experience is considered, or not considered, to be relevant.

The Ombudsman's assessment

17. The Ombudsman notes at the outset that selection boards enjoy wide discretionary powers in determining whether the qualifications and professional experience of candidates correspond to the level required by the Staff Regulations and the notice of competition itself^[2]. The position taken by a selection board is open to review only if the exercise of that discretion has been vitiated by a manifest error in law or in fact^[3]. The Ombudsman also notes that the terms of the notice of competition constitute both the legal framework of the selection boards' proceedings and the assessment framework for its evaluation of the candidates^[4]. Furthermore, the admission requirements set out in the notice of competition should be interpreted in line with the purpose of the competition, which follows from the description of the duties relevant to the posts to be filled. Consequently, the part of the notice of competition describing the nature of the duties and the part concerning the admission requirements must be considered together^[5]. Finally, the discretionary powers of selection boards also extend to deciding whether or not the supporting documents presented by candidates constitute sufficient proof that they possess the required qualifications and/or professional experience.

18. In this case, EPSO clarified, in its reply to the complainant's request for review, that the Selection Board had determined that his diplomas were not directly relevant to the legal field.

19. In this regard, the Ombudsman notes that the complainant stated that he has two diplomas in political science and international relations, and that one third of these studies encompassed the legal field. The Ombudsman also notes that the Notice of Competition provided, under Point 2 of Annex III, that the required qualification was:

"Post-secondary education attested by a diploma in the legal field

OR

a level of secondary education attested by a diploma giving access to higher education, followed by at least 3 years' professional experience relevant to the nature of the duties.

NB: The minimum of 3 years' professional experience required counts as an integral part of the qualification and cannot be counted towards the professional experience required below. "

20. It is not evident to the Ombudsman that the Selection Board's conclusion, that the complainant's diplomas in political science and international relations are not directly relevant to the legal field, is tainted by a manifest error of assessment. This meant that the complainant should altogether have had at least 6 years of professional experience: the initial 3 years of professional experience relevant to the nature of the duties instead of a diploma in the legal field, and an additional 3 years of professional experience, as required by Point 3 of Annex III of the Notice of Competition[6].

21. In light of the above, the Ombudsman considers that EPSO has replied properly to the complainant's request for review as regards the substantive issues. The Ombudsman therefore concludes that EPSO has taken the necessary steps to settle the matter.

22. As regards the complainant's grievance concerning the time EPSO has taken to deal with his request for review (the complainant made his request in July 2014 and received a reply in December 2014), the Ombudsman will soon launch an own-initiative inquiry into this subject to examine it in full. The Ombudsman therefore considers that this aspect requires no further inquiries in the context of the present complaint.

Conclusion

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

EPSO has taken the necessary steps to settle the matter.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly,

Strasbourg 23/06/2015

 

[1] OJ 2013 CA 355, p.1.

[2] Case T-332/01, Pujals Gomis v Commission,[2002] ECR-SC I-A 233, paragraphs 39-41.

[3] Case F-4/08, Hambura v Parliament, [2009] ECR-SC I‑A‑101 and II‑A‑447‑, paragraph 24.

[4] Case T-80/96, Fernandes Leite Mateus v Council, [1997] ECR-SC- I-A 87, paragraph 27.

[5] Case T‑146/99 Teixeira Neves v Court of Justice [2000] ECR‑SC I‑A‑159 and II‑731, paragraph 34-36.

[6] Point 3 of Annex III of the Notice of Competition provides: "At least 3 years' professional experience relevant to the nature of the duties. Such professional experience is relevant only if acquired after the diploma giving access to the competition was obtained."