Strasbourg, 5 October 2005

Dear Mr Z.,

On 26 January 2004, you made a complaint to me against the European Personnel Selection Office (hereinafter "EPSO") concerning your disqualification from competition COM/A/2/02 organised by the European Commission to constitute a reserve of assistant administrators in the field of "Agriculture".

On 8 March 2004, I forwarded the complaint to the Director of EPSO. On 2 April 2004, EPSO informed me that, on 24 December 2003, you had lodged an appeal on the basis of Article 90(2) of the Staff Regulations concerning your disqualification from competition COM/A/2/02. EPSO further informed me that it would send me a copy of its reply to your appeal as its opinion. EPSO sent its opinion on 23 August 2004. On 3 November 2004, I forwarded EPSO's opinion to you with an invitation to make observations by 30 November 2004 at the latest. No observations were received from you by that date.

On 2 February 2005, I asked EPSO for further information in relation to your complaint. EPSO sent its reply on 8 March 2005. EPSO's reply was forwarded to you, with an invitation to make observations, which you sent on 7 April 2005.

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 as follows:

In July 2002, the European Commission organised two open competitions for the recruitment of administrators (COM/A/1/02) and assistant administrators (COM/A/2/02) in the fields of "Agriculture", "Fisheries" and "Environment".

The complainant applied to participate in competition COM/A/2/02 in the field of "Agriculture".

The French version of point II.2 of the notice of competition provided as follows:

a) "Aucune expérience professionnelle n'est requise.

b) Seront admis à concourir les candidats ayant obtenu le diplôme de niveau universitaire donnant accès au concours après le 27 septembre 1997.

c) Ainsi que les candidats ayant obtenu un diplôme postuniversitaire en rapport direct avec les secteurs d'activité concernés après le 27 septembre 1999.

La date à laquelle le candidat peut se prévaloir de l'obtention du diplôme doit figurer clairement sur le diplôme même ou sur une attestation officielle."

The complainant was admitted to participate in the preselection tests and the written tests. He passed them and was informed by EPSO, in a letter of 30 October 2003, that he was admitted to participate in the oral test on 3 December 2003.

In a letter dated 16 December 2003, the complainant was informed that, following his oral test and upon request of the President of the Selection Board, his application had been re-examined. The complainant was further informed that his application had to be rejected because it did not fulfil conditions b) and c) set out in point II.2 of the notice of competition, given that he had not obtained his university degree after 27 September 1997 and that no post-graduate qualification directly relevant to the areas of activity concerned had been obtained by him after 27 September 1999.

In a letter of 3 January 2004 to the President of the Selection Board, the complainant asked the latter to reconsider its decision to disqualify him on the grounds that his application did not meet the conditions set out in Point II.2 of the notice of competition.

In its reply of 28 January 2004, which was made on behalf of the Selection Board, EPSO informed the complainant that the Selection Board had confirmed its decision to disqualify him. EPSO observed that the Selection Board had to comply with the conditions set out in the notice of competition that it had already applied to the other candidates, by applying simultaneously conditions a), b) and c) of point II.2 of the notice. EPSO further stated that condition b) of point II. 2 of the notice of competition should not be considered to be arbitrary but related to the simultaneous launching of two competitions with different conditions of admission, namely in relation to the candidates' professional experience.

In his complaint to the European Ombudsman, the complainant alleged that:

1) The Selection Board had unfairly disqualified him because the French version of the notice of competition did not mention that conditions a) and b) of point II. 2 had to be fulfilled simultaneously to be admitted to the competition.

2) By admitting him to the written tests, which implied that his file met all the conditions set out in the notice of competition, and by disqualifying him after the oral test, the Selection Board had failed to act with consistency.

3) By requesting the candidates to have obtained the university degree required for admission after 27 September 1997, EPSO had failed to avoid any discrimination and to accept applications without distinction on the grounds of age, as stated in the notice of competition.

The complainant claimed that his name should be put on the list of candidates admitted to participate in the competition. If the Selection Board should refuse to put his name on the list of candidates admitted to participate in the competition, the complainant claimed that he should receive EUR 10 000 in damages.

THE INQUIRY

The opinion of EPSO

The opinion of EPSO on the complaint was, in summary, as follows:

Concerning the allegedly unfair disqualification of the complainant by the Selection Board, it was obvious that conditions a), b) and c) of point II.2 of the notice of competition had to be fulfilled simultaneously to be admitted to the competition. In its reply of 28 January 2004 to the complainant's letter of 3 January 2004, made on behalf of the Selection Board, EPSO had already pointed out that condition b) of point II. 2 of the notice of competition should not be considered to be arbitrary but related to the simultaneous launching of two competitions with different conditions of admission, namely in relation to the candidates' professional experience.

Concerning the alleged failure of the Selection Board to have acted with consistency, the notice of competition clearly stated that if at any stage of the procedure it was established that a candidate did not meet all the conditions for admission to the competition that candidate would be disqualified. When the Selection Board noticed that the complainant's application did not meet conditions b) and c) of the notice of competition, it had to disqualify his application, in accordance with the notice of competition and in order to avoid any discrimination. It was further pointed out that, in his complaint of 24 December 2003 made under Article 90(2) of the Staff Regulations, the complainant had recognised that he had obtained his university degree on 23 November 1988, that is to say before the cut-off date set out in the notice of competition. He was, therefore, perfectly aware of the fact that his application did not fulfil the conditions of admission to the competition.

Concerning the alleged failure of EPSO to have avoided any discrimination and to have accepted applications without distinction on the grounds of age, EPSO stated that condition b) of point II.2 of the notice of competition excluded candidates who had obtained their diploma before a certain date from applying for the competition. According to EPSO, however, candidates who had postponed their universities studies or students who had not studied at university immediately on completion of their secondary schooling were able to apply for the competition.

Two open competitions had been organised simultaneously for the recruitment of administrators (COM/A/1/02) and assistant administrators (COM/A/2/02). In competition COM/A/1/02, candidates were required to have at least three years of professional experience, whereas in competition COM/A/2/02 no professional experience was required. Candidates in competition COM/A/2/02 were, however, required to have obtained the university degree required for admission after 27 September 1997 or to have a post-graduate qualification that was directly relevant to the areas of activity concerned and that had been obtained after 27 September 1999. By requesting the candidates to have obtained the university degree required for admission after 27 September 1997, condition b) of point II.2 of the notice of competition precisely aimed at ensuring a fair and separate competition between candidates for competitions COM/A/1/02 and COM/A/2/02, depending on whether they had professional experience or not.

The complainant's observations

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

Further inquiries
The Ombudsman's request for information from EPSO

After careful consideration of EPSO's opinion, it appeared that further inquiries were necessary. The European Ombudsman therefore asked EPSO to provide him with information on the following point:

"Pursuant to condition a) of point II.2 of the notice of competition COM/A/2/02, candidates were not required to have any professional experience to be admitted to the competition. In its opinion, however, EPSO appeared to suggest that candidates who had professional experience should have applied to competition COM/A/1/02 (administrators) and not to COM/A/2/02 (assistants). Could EPSO please explain this discrepancy and clarify why it considered that it had not failed to avoid any discrimination on the grounds of age by requesting the candidates to have obtained the university degree required for admission after 27 September 1997?"

EPSO' reply

In its reply, ESPO made in, summary, the following statements:

The allegation raised in the complaint was identical to the ones raised in complaints 1523/2002/GG and 1536/2002/OV(1) dealing with the condition of the freshness of the candidates' diploma. In his decisions on these two complaints, the Ombudsman had considered that there had been no maladministration by the European Commission.

EPSO pointed out that, as stated in its letter of 15 September 2003 to the Ombudsman(2), it had been decided not to organise any further competitions whose notice required a condition of "freshness" as regards the diploma.

The complainant's further observations

In his further observations, the complainant maintained his allegations.

THE DECISION

1 The allegedly unfair disqualification of the complainant by the Selection Board

1.1 In July 2002, the European Commission organised two open competitions for the recruitment of administrators (COM/A/1/02) and assistant administrators (COM/A/2/02) in the fields of "Agriculture", "Fisheries" and "Environment". The complainant applied to participate in competition COM/A/2/02 in the field of Agriculture. The complainant alleged that the Selection Board had unfairly disqualified him because the French version of the notice of competition did not mention that conditions a) and b) of point II.2 had to be fulfilled simultaneously to be admitted to the competition.

1.2 EPSO stated that it was obvious that conditions a), b) and c) of point II.2 of the notice of competition had to be fulfilled simultaneously to be admitted to the competition.

1.3 The Ombudsman notes that the French version of point II.2 of the notice of competition for competition COM/A/2/02 (assistant administrators) was drawn up in the following terms: a) "aucune expérience professionnelle n'est requise" b) "Seront admis à concourir les candidats ayant obtenu le diplôme de niveau universitaire (…)." c) "ainsi que les candidats ayant obtenu un diplôme post-universitaire (…)".

The Ombudsman further notes that, in his complaint made under Article 90(2) of the Staff Regulations, the complainant recognised that he had obtained his university degree on 23 November 1988, that is to say before the cut-off date set out in the notice of competition.

1.4 The Ombudsman considers that it emerges from the notice of competition that conditions a), b) and c) under point II. 2 of the notice of competition had to be applied simultaneously and that candidates who only fulfilled one of the three conditions would not be admitted to the competition.

1.5 In view of the above, the Ombudsman concludes that there appears to have been no maladministration on the part of EPSO as regards this allegation.

2 The alleged failure of the Selection Board to have acted with consistency

2.1 The complainant alleged that, by admitting him to the written tests, which implied that his file met all the conditions set out in the notice of competition, and by disqualifying him after the oral test, the Selection Board had failed to act with consistency.

2.2 EPSO argued that the notice of competition clearly stated that if at any stage of the procedure it was established that a candidate did not meet all the conditions for admission to the competition, the latter would be disqualified.

2.3 The Ombudsman notes that point 7 of Part C of the notice of competition stated that "if at any stage in the procedure, it is established that the information on your optical reader registration form or official application form is incorrect or does not tally with the supporting documents or that you do no meet all the conditions for admission to the competition, you will be disqualified".

2.4 In light of the above, the Ombudsman considers that the position adopted by the Selection Board appears to be reasonable. The Ombudsman concludes that there appears to have been no maladministration on the part of EPSO as regards this allegation.

3 The alleged failure of EPSO to have avoided any discrimination on the grounds of age

3.1 The complainant alleged that, by requesting the candidates to have obtained the university degree required for admission after 27 September 1997, EPSO failed to avoid any discrimination and to accept applications without distinction on the grounds of age, as stated in the notice of competition.

3.2 EPSO stated that condition b) of point II.2 of the notice of competition excluded candidates who had obtained their diploma before a certain date from applying for the competition. According to EPSO, however, candidates who had postponed their university studies or students who had not studied at university immediately on completion of their secondary schooling were permitted to apply for the competition. EPSO further argued that, by requesting the candidates to have obtained the university degree required for admission after 27 September 1997, condition b) of point II.2 of the notice of competition precisely aimed at ensuring a fair and separate competition between candidates for competitions COM/A/1/02 and COM/A/2/02, depending on whether they had professional experience or not.

3.3 On 2 February 2005, the European Ombudsman asked EPSO to submit further information regarding this issue.

3.4 In its reply, EPSO stated that the allegation raised in the complaint was identical to the ones raised in complaints 1523/2002/GG and 1536/2002/OV dealing with the condition of "the freshness of the candidates' diploma". In his decisions on these two complaints, the Ombudsman had considered that there had been no maladministration by the European Commission.

3.5 In his further observations, the complainant maintained his allegations.

3.6 As stated in EPSO's opinion, the European Ombudsman has already had to deal with the issue of the condition of "freshness" of the candidates' diploma in his inquiries into complaints 1523/2002/GG and 1536/2002/OV which also concerned competition COM/A/2/02.

3.7 In his decision on complaint 1523/2002/GG, the Ombudsman noted that "the relevant competition(3) was for career bracket A8 (assistant administrator), which is the basic A-grade career bracket and for which no previous professional experience is required. He further notes that the institutions and bodies of the EU organise their competitions in order to recruit officials based on the needs of their services, and that they have considerable discretion in doing so, provided that they comply with the Staff Regulations and other legal rules that are binding upon them. The Ombudsman takes the view that by requiring candidates for A8 posts (assistant administrators) to have a university degree that has been obtained in the recent past, the Commission has acted within the limits of its legal authority(4). The same conclusion holds true for the Commission’s decision to set the period during which the degree had to be obtained at five years before the closing date." In his decision on complaint 1523/2002/GG, the Ombudsman further noted that "the 'recent degree' clause that applied to the competition concerned was broader than corresponding clauses applied in previous competitions and that the Commission organised competition COM/A/1/01 for administrators concurrently with the competition concerned. Candidates who had obtained their university degree on or before 27 September 1997 but who had three years’ professional experience corresponding to the duties concerned were thus able to take part in competition COM/A/1/01."

In his decision on complaint 1536/2002/OV, the Ombudsman considered that "[t]he use by the Commission of an alleged indirect discriminatory clause in the conditions for the admission to competition COM/A/2/02, namely the date in which A8 applicants obtained their academic degree or a specialised degree, should be based on objective reasons. This reasoning should allow the Ombudsman to assess whether the Commission has acted within the limits of its legal authority in imposing this type of condition. The Commission has justified the application of this clause on the basis of the nature and functions to be carried out by assistant administrators. Since A8 officials are not deemed to have any relevant professional experience prior to their joining the Commission, the institution has set a date for the completion of their studies or specialised studies. The 'freshness' of the diploma appears thus as a specific condition based on the nature of the posts to be filled. By imposing a condition based on the 'freshness' of the diploma to A8 candidates, the Ombudsman has concluded that the Commission acted within the limits of its legal authority". The Ombudsman found no instance of maladministration in his decisions on complaints 1523/2002/GG and 1536/2002/OV which concerned competition COM/A/2/02 which is the object of the present complaint.

3.8 In these circumstances, the Ombudsman concludes that there appears to have been no maladministration on the part of EPSO as regards this aspect of the case. However, the Ombudsman welcomes EPSO's decision to abolish the use of a recent degree requirement in its future recruitment procedures.

4 The complainant's claims

4.1 The complainant claimed that his name should be put on the "list of candidates admitted to participate in the competition". If the Selection Board should refuse to put his name on the list of candidates admitted to participate in the competition, the complainant claimed that he should receive EUR 10 000 in damages.

4.2 In the light of the above, the Ombudsman considers that there is no need further to pursue his inquiry into the complainant's claims.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by 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) These decisions are available on the European Ombudsman's website at the following address: http://www.ombudsman.europa.eu/decision/en/default.htm.

(2) EPSO refers to the letter of 15 September 2003 sent to the Ombudsman in the framework of the complaints 1523/2002/GG and 1536/2002/OV.

(3) i.e., competition COM/A/2/02.

(4) See the Ombudsman’s decision of 21 July 2000 on complaints 428/98/JMA and 464/98/JMA.