Decision of the European Ombudsman on complaint 277/98/BB against the European Commission

Dear Mr S.,
On 26 November 1997 you made a complaint to the European Ombudsman concerning age limits applied by the Community institutions and the delay of the European Commission to inform you that your application for Open Competition EUR/LA/116 had been excluded on grounds of age.
On 26 March 1998, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 30 July 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 5 August 1998, I received your observations on the Commission's opinion.
The European Ombudsman received a number of complaints from unsatisfied Union citizens who complained about age limits. Therefore, on 14 July 1997, I decided to initiate an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions. On 4 November 1998, I completed my own initiative inquiry.
I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint due to the need to initiate an own initiative inquiry into the use of age limits for recruitment to the Community institutions.

THE COMPLAINT

In his complaint the complainant explained that the Notice of Competition EUR/LA/116 was published on 18 November 1996. By letter of 6 November 1997, the Selection Board informed him of its decision to exclude him from Competition EUR/LA/116, as the Board had realised that the complainant did not fulfill the age limit condition set in the Notice.
According to the complainant, after having being admitted to participate in Competition EUR/LA/116, the Board took almost one year before it communicated its decision to exclude him from the above-mentioned competition. The complainant claimed that the Board had decided to delay its decision of exclusion relying on point D.IV.6 of the Notice of Competition.
The complainant alleged that the Board had ignored the documents he had presented about his date of birth. On 17 March 1997, he was admitted to participate in Open Competition EUR/LA/116. On 14 April 1997, he was invited to the written tests. On 16 May 1997, at the written tests he was provided with a certificate stating clearly his date of birth. On 29 August 1997, the complainant received a letter from the Selection Board stating that he had passed the written tests a) and b) and that his c) and d) tests would therefore be examined and that he would be informed of the results as soon as possible. On 6 November 1997, the Selection Board informed the complainant that due to the fact that he did not fulfill the condition in the Notice of Competition relating to age, he was excluded from the competition.
The complainant considered that age limits are fundamentally unjustified and that the Community institutions apply them arbitrarily. In Italy, age limits in the public sector were abolished by legislation adopted on 15 March 1997. Article 118 of the Maastricht Treaty imposes on the Commission the obligation to promote collaboration with the Member States in areas of social policy, particularly, areas such as the improvement of the right to work and working conditions. The Treaty of Amsterdam provides for a general provision on non-discrimination mentioning also age as a means of discrimination.
The complainant explained that the aim of his complaint is to seek that all discrimination on grounds of age within the Community institutions is abolished. Furthermore, the complainant expressed a need for the Commission to take up an initiative to propose a directive prohibiting on the European level all discrimination on grounds of age. Finally, the complainant claimed that the Selection Board should annul its decision to exclude him from the Competition EUR/LA/116.

THE INQUIRY

The Commission's opinion
As regards Open Competition EUR/LA/116, it is true that the complainant was admitted to participate in the above-mentioned competition. Only after the results of the written test were obtained and complementary verification done the application of the complainant was excluded from the competition on grounds that he did not fulfill the age limit condition set in the Notice of Competition EUR/LA/116.
The Commission regretted that the complainant got to know so late about the inadmissibility of his application. However, the notices of competition provide always for the selection boards the possibility to exclude a applicant when it discovers that an applicant does not fulfill the conditions set in the notice without prejudice to the stage of the competition.
As to age limits in general, the Commission pointed out that applying different age limits constitutes in fact an element of the recruitment policy of each institution following the needs of the various services. The age limit set in the above-mentioned competition was the age limit habitually applied by the Commission for such competitions.
Despite the decision of 21 January 1998 to raise the age limit to 45 for up-coming competitions, this decision was not yet in force when drafting the Notice of Competition for the competition concerned.
The fact that the Italian legislature has abandoned all age limits in competitions has no effect whatsoever to competitions of the Community institutions.
As regards Article 118 of the Treaty establishing the European Community, it has no effect in this matter.
As to the Treaty of Amsterdam and its new Article 6 A, this Treaty has not yet been ratified by the Member States. The Commission cannot make any proposals on texts which are not yet in force. In addition, in order to adopt the necessary measures for the application of this Article the Council has to have the unanimous backing of the Member States concerned.
The complainant's observations
In his observations the complainant maintained his complaint.

THE DECISION

1 Own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the Community institutions
1.1 The Ombudsman's decision on 14 July 1997 to open an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions was motivated by a considerable number of complaints, including that of the complainant. On the basis of Article 138e of the Treaty Establishing the European Community, the Ombudsman is empowered to conduct an inquiry in relation to possible maladministration in the activities of Community institutions and bodies.
1.2 Before launching his own initiative inquiry the Ombudsman had a comparative research done about the use of age limits in the various Member States. This research indicated that, currently, there does not exist a common legal or constitutional principle either allowing or prohibiting age discrimination in the public sector. Member States apply an age limit which is in general higher than 35 years. However, a tendency towards prohibiting age limits as discriminatory was apparent in some Member States.
1.3 The Ombudsman's own initiative inquiry as well as his inquiries into individual complaints indicated that the age limits used by the Community institutions vary from 35, 40 and 45 to 55. The reasons for using them has been explained by, for example, balanced management in the career structure, geographical balance, good ratio between men and women employees, problems increasing with age in adapting to a multicultural and multilingual environment, possibility of mobility decreasing with age, unemployment of young people, and by the possibility of limiting the number of candidates.
1.4 As regards the human rights provisions on non-discrimination, the own initiative inquiry revealed that it cannot be excluded that the scope of application of the European Convention of Human Rights could also cover discrimination on the grounds of age in cases were there exists no objective and reasonable justification for such discrimination.
1.5 The Ombudsman found that age is to be regarded as a possible cause of discrimination. As regards the European Union, this has been particularly clarified by the Treaty of Amsterdam and, therefore, the need to combat age discrimination will only culminate by its entry into force.
1.6 Based on his own initiative inquiry the Ombudsman is of the view that each Union citizen should have the possibility to seek employment within the European Union administration. If it is considered appropriate to limit this possibility, this needs to be carried out with sufficient justification avoiding in the recruitment procedures any elements which might be considered discriminatory or arbitrary.
2 The legal basis for the use of age limits
2.1 The Ombudsman understands that based on Article 1, paragraph 1 (g) of Annex III to the Staff Regulations, the European Commission and other Community institutions may specify an age limit in notices of competition. However, the Ombudsman is of the view that the current practice within the Community institutions of setting various age limits with differing grounds and without sufficient justification cannot be considered as correct application of age limits.
2.2 The Ombudsman's inquiries appear to indicate that the Community institutions could envisage the setting of one common age limit with appropriate reasoning and sufficient justification. If the Community institutions are not able to abandon the use of age limits, it would be preferable to clarify the relevant provision of the Staff Regulations in order to guarantee that age limits are not applied in a discriminatory or arbitrary manner.
3 Policy principle to abandon the use of age limits
3.1 The European Parliament decided on 20 October 1997 to raise the age limit to 45 years for the up-coming competitions for the starting grades with a review after two years on the basis of a report to be submitted by the personnel service to the Secretary-General of the Parliament.
3.2 Furthermore, the European Commission decided on 21 January 1998 on a policy principle to abandon age limits in its recruitment policy. In its comments to the Ombudsman's own initiative inquiry, the Commission considered it necessary to put its decision into practice in common agreement with other institutions and that, in the meantime, the Commission will apply an age limit of 45.
3.3 In view of the above developments, the Ombudsman recognises that there is indeed a need for a common inter-institutional agreement. On the basis of the European Ombudsman's inquiries on his own initiative and taking into account the European Commission's announcement on a policy principle to abandon the use of age limits with a possible inter-institutional agreement, the Ombudsman found no grounds to further pursue his own initiative inquiry into the use of age limits.
4 Delay in informing the complainant about his exclusion on grounds of age from Open Competition EUR/LA/116
4.1 In its comments the Commission confirmed that the complainant was admitted to participate in the above-mentioned competition. Only after the results of the written test were obtained and complementary verification done the application of the complainant was excluded from the competition on grounds that he did not fulfill the age limit condition set in the Notice of Competition EUR/LA/116.
4.2 The European Ombudsman notes, firstly, that the Notice of Competition EUR/LA/116 set a clear condition which the applicants should have been aware. Secondly, the Notice of Competition provided for the Selection Board the possibility to exclude an applicant in case it discovered that he/she did not fulfill the conditions set in the Notice without prejudice to the stage of the competition. Finally, the Commission in its comments regretted the delay in informing the complainant about his exclusion.
4.3 The European Ombudsman found that there was no instance of maladministration in relation to this aspect of the complaint.
Conclusion
The European Ombudsman's inquiry into this complaint has not revealed an instance of maladministration by the European Commission and, therefore, he decides to close the case.

FURTHER REMARKS

The Ombudsman has requested that the European Commission keep him informed about the action undertaken in order to obtain such a common inter-institutional agreement to abolish age limits.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN