Strasbourg, 2 August 2007

Dear Mr X,

On 23 May 2005, you complained to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/A/12/04(1) in the field of nuclear inspection and research.

On 16 June 2005, I forwarded your complaint to the Director of EPSO with an invitation to submit an opinion. EPSO sent its opinion on 19 September 2005. I forwarded it to you with an invitation to make observations, which you sent on 27 December 2005.

On 22 November 2006, my services asked EPSO to provide further documents regarding the case which it forwarded on the same day.

I am writing now to let you know the results of the inquiries that I have made into your complaint.

I apologise for the length of time it has taken to handle your complaint.

THE COMPLAINT

The complainant participated in Open Competition EPSO/A/12/04, organised to recruit administrators in the field of nuclear inspection and research. On 21 March 2005, EPSO informed the complainant that the Selection Board rejected his application to the competition because, contrary to Point A.II.2 of the Notice of Competition and as established on the basis of the documents provided with his full application, he did not have, by the closing date for submission of applications to the competition, that is, 5 April 2004, (i) at least three years of graduate-level professional experience; (ii) two years of professional experience relevant to the duties concerned(2).

Point A.II.2 of Notice of Competition EPSO/A/12/04 provided the following:

"2. Professional experience required

Since obtaining the qualification required for admission to the competition, you must have gained at least three years' full-time graduate-level professional experience, including two years relevant to the duties concerned."

By letter of 22 March 2005, the complainant requested a re-examination of the decision to exclude him from Open Competition EPSO/A/12/04. In his request, the complainant described, in summary, the details of the activities carried out at the Y, where he had been employed for two years. Further, the complainant also stated that he had attached to his full application his contract with A, which clearly indicated his position as a civil engineer (which, in turn, demonstrated that he held a university degree) as well as his place of work, that is, the nuclear power plant in Aa. The complainant also explained that for confidentiality reasons he could not disclose certain parts of his contract with A.

On 6 April 2005, EPSO acknowledged receipt of the complainant's request and informed him that it would be submitted for examination by the Selection Board.

By letter of 12 April 2005, EPSO informed the complainant that the Selection Board in Open Competition EPSO/A/19/04(3), organised to recruit administrators in specialised fields of civil engineering, engineering, chemistry/chemicals/chemical engineering and aviation, had retained his application. According to the complainant, the requirements of this competition with regard to the supporting documents were almost identical to those in Open Competition EPSO/A/12/04.

On 7 May 2005, the complainant wrote to EPSO again to inform it, in essence, of the decision of the Selection Board in Open Competition EPSO/A/19/04. He stated that, although several of the admission criteria were identical in both Open Competition EPSO/A/12/04 and Open Competition EPSO/A/19/04, the Boards came to two diametrically opposed decisions on the basis of the same supporting documents provided.

In response to his request of 22 March 2005, EPSO informed the complainant, by letter of 12 May 2005, that the Selection Board in Open Competition EPSO/A/12/04 confirmed its decision not to admit him to the next stage of the competition. EPSO quoted Point A.II.2 of the Notice of Competition and informed the complainant that, on the basis of the documents he had provided before the deadline for submission of full applications, that is, 11 February 2005, the Board could not verify if he fulfilled the conditions stated in Point A.II.2. In his CV, under the heading "Professional experience", the complainant had mentioned his employment as a research assistant at Y with a very brief description of the duties carried out in this post. However, this description had not been proved or supported in any way by the documents attached to the application which did not contain any description of the duties carried out or the subjects studied. Similarly, the documents that the complainant attached to his application with regard to his employment as a civil engineer at "B" (sic) did not prove that he had been active in the field of nuclear inspection, research and/or nuclear engineering at the nuclear power plant in Aa. Furthermore, it was also stated in the letter that the Board, which was itself bound by respect for confidentiality, understood the complainant's arguments regarding the disclosure of certain classified information. However, the Board could not, on the basis of the documents provided by the complainant by the deadline of 11 February 2005, admit him to the competition. The arguments put forward by the complainant in his request of 22 March 2005 were much more complete than his full application but, in order to ensure the respect of equal treatment of the candidates, the Board had to consider them as having been submitted after the deadline.

In his complaint to the European Ombudsman, the complainant alleged that the decision to exclude him from Open Competition EPSO/A/12/04 was inconsistent with his admission to Open Competition EPSO/A/19/04 and that his request for a re-examination of the exclusion was handled in a negligent and unprofessional way.

The complainant claimed that he should be admitted to Open Competition EPSO/A/12/04.

In support of his allegation and claim, the complainant made, in essence, the following arguments:

(i) He noted that several conditions of admission to Open Competitions EPSO/A/12/04 and EPSO/A/19/04 were identical, such as the requirement for at least three years of full-time graduate-level professional experience, and that he had submitted the same documents in both competitions. He stated that, while the Selection Board in Open Competition EPSO/A/19/04 had admitted him to the competition, the Board in Open Competition EPSO/A/12/04 had excluded him. He stated that the Boards had reached diametrically opposed decisions, on the basis of what he referred to as a "purely administrative decision" concerning his application and the documents submitted.

(ii) EPSO's letter of 12 May 2005 referred to the complainant's professional experience at "B", where he had never worked, instead of "A" where he was actually employed. This error indicated an unprofessional handling of his request for re-examination of his application, which could have had serious damaging effects on the outcome of his application.

(iii) With regard to the Selection Board's statement that, although the arguments in his request for re-examination of his application were much more complete than his full application, it could not take them into consideration because they were submitted after the deadline, the complainant stated that he sent his request for re-examination by registered mail the day after he had been informed of the decision to exclude him from the competition, thus well within the 20-day deadline for submitting such a request as provided in the Notice of Competition.

(iv) In the same context, the complainant argued that this request for re-examination did not contain any new document but was based solely on the documents he had attached to his full application and could therefore not have been more complete.

(v) "The Commission" should have known the duties carried out and the subjects studied at Y, since it had concluded numerous research contracts with that unit. In case the flow of information between the different departments of "the Commission" was hindered, its "recruitment service"(4) should have checked the relevant and publicly accessible website of Y for the detailed description of the duties carried out and the subjects studied.

(vi) His work contract with A clearly mentioned the function he carried out (civil engineer) and the place of work (nuclear power plant in Aa), which proved that he was active in the nuclear field.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO made, in summary, the following comments:

Notice of Open Competition EPSO/A/12/04 was published on 2 March 2004. The complainant applied to participate in the competition. After a preliminary eligibility check of his first application, the complainant was admitted to participate in the pre-selection tests, which took place on 19 November 2004. The written test took place on the same day. After the correction of the pre-selection tests, the Selection Board invited 540 candidates, who obtained the highest scores and the pass mark for each of the tests, to submit a full application, with a view to proceeding to the subsequent stage of the competition, that is, the correction of the written test. The complainant was among those 540 candidates. By letter of 21 March 2005, EPSO informed the complainant that the Board had decided to exclude him from the competition because, on the basis of the documents that he had submitted with his full application, it considered his professional experience to be insufficient in light of Point A.II.2 of the Notice of Competition. In particular, the complainant did not appear to have at least three years of graduate-level professional experience, of which two years that were relevant to the duties concerned. On 22 March 2005, the complainant requested that the decision of the Selection Board be re-examined. By letter of 12 May 2005, EPSO informed the complainant that the Board confirmed its decision to exclude him from the competition. However, before receiving the above reply, the complainant wrote to the Board again on 7 May 2005 informing it that he had been admitted to Open Competition EPSO/A/19/04 which presumably contained the same admission conditions. By letter of 30 May 2005, EPSO responded to the complainant's correspondence of 7 May 2005.

Comparing Open Competitions EPSO/A/12/04 and EPSO/A/19/04

EPSO stated that the two competitions were not identical. The aim of Open Competition EPSO/A/12/04 was to recruit administrators in the field of nuclear inspection and research, whereas the aim of Open Competition EPSO/A/19/04 was to recruit administrators in other specialised fields, notably civil engineering, engineering, chemistry/chemicals/chemical engineering and aviation. The notices of the two competitions provided that the candidates must have had sufficient professional experience relevant to the duties concerned but the nature of the duties was different for each competition.

In support of its views, EPSO cited the relevant case law of the Community Courts, according to which, a candidate for a competition, seeking annulment of a selection board's decision to reject his application, cannot, under any circumstances, rely on conditions of admission to other competitions, which are organised according to different procedures and which pursue different aims(5).

Handling of the complainant's request for re-examination

EPSO recalled that, in his complaint to the Ombudsman, the complainant stated that his application had been rejected on the basis of purely administrative reasons concerning the certificates he had provided.

Point A.II.2 (Professional experience required) of Notice of Competition EPSO/A/12/04 provided that "[s]ince obtaining the qualification required for admission to the competition, [candidates] must have gained at least three years' full-time graduate-level professional experience, including two years relevant to the duties concerned" (emphasis in original).

According to the established case-law of the Community Courts, a selection board is bound by the wording of a relevant notice of competition, in particular by the conditions of admission as set out in the notice. Notice of Competition EPSO/A/12/04 expressly stated that the candidates must provide proof of citizenship, and evidence of diplomas and professional experience. As regards professional experience, in particular, EPSO required that the certificates should clearly show the dates of the beginning and the end of employment, as well as the precise nature of the duties carried out.

By letter of 12 May 2005, EPSO informed the complainant that the Selection Board had examined his request for re-examination of 22 March 2005 and the arguments he had put forward. The Board concluded that the evidence provided by the complainant by the deadline for submission of full applications, that is, 11 February 2005, did not adequately describe the duties that he had carried out or the subjects which he had studied, or prove that he had been active in the field of nuclear inspection. The Board could not take into consideration the complementary explanations regarding different employments, contained in the complainant's request of 22 March 2005, because they were provided after the deadline for submission of the full applications.

The Selection Board also carefully examined the complainant's request of 7 May 2005. By letter of 30 May 2005, EPSO informed the complainant of the Board's decision regarding this request. In the same letter, EPSO drew the complainant's attention to the fact that the two competitions referred to by him in his request were not identical. EPSO explained that these two competitions related to different areas of activities and the Board in Open Competition EPSO/A/19/04 could admit the complainant to that competition because he fulfilled all the conditions for admission, which was not the case in Open Competition EPSO/A/12/04.

The possibility open to the candidates to request a revision of a decision of the Selection Board does not constitute an automatic obligation on the Board to change the decision taken. The Board's obligation is to examine the arguments put forward by the candidates and to re-examine the dossier in light of the request. It is for the Board to decide, in light of its wide margin of discretion, as recognised in the relevant case-law of the Community Courts, whether the conditions of admission in a particular case are fulfilled or not. It was not true that the Board had excluded the complainant from Open Competition EPSO/A/12/04 for "purely administrative" reasons. It was expressly indicated in Notice of Competition EPSO/A/12/04 that it was for the candidates to provide all the information and documents which they considered useful in order to allow the Board to verify if they met the conditions set out in the Notice. In the absence of a precise description which should have been provided by the complainant, the Board was not in a position to establish whether he effectively possessed the necessary and relevant experience in the nuclear field. The decision to exclude him from the competition was therefore legitimate and the Board had thus respected the relevant provisions of Notice of Competition EPSO/A/12/04.

In its letter of 30 May 2005, EPSO corrected the mistake regarding the complainant's employer A, which had unfortunately appeared in the letter of 12 May 2005. This regrettable mistake could not be considered as evidence of an improper handling of his application, or a lack of professionalism, unreliability or a lack of seriousness in this regard, as argued by the complainant, but as a simple typing mistake. The Selection Board examines all requests for a re-examination of an application with care and every dossier is given, in substance, individual attention. It is only after it has taken account of all the elements and arguments put forward in a request that the Board asks EPSO to transmit its conclusions to the candidates.

EPSO concluded that the Selection Board had acted within the limits of its powers.

The complainant's observations

In his observations, the complainant maintained his allegation and claim and made the following comments, in addition to the submissions already made:

The erroneous reference to his employer in EPSO's letter of 12 May 2005 ("B" instead of "A") was only corrected by EPSO's letter of 30 May 2005, that is, after his requests for re-examination dated 22 March and 7 May 2005, and after he had complained to the Ombudsman on 23 May 2005. This showed that the Selection Board had not examined his professional experience correctly, since it held that he had not provided all the relevant documents, whereas, in fact, it used the ones that were provided in an improper way.

In its letter of 21 March 2005, EPSO stated that the Selection Board had excluded him from Open Competition EPSO/A/12/04 because (i) he had not demonstrated that he had three years of graduate-level professional experience; and (ii) he had not demonstrated that he had acquired two years of professional experience in the relevant field. The Board's decision was based on these two reasons and not only the latter. However, EPSO did not explain why the Board had not recognised the three years of graduate-level professional experience, whereas the documents that he had provided with his full application clearly proved that he had three years of graduate-level professional experience. The complainant therefore questioned whether the Board had indeed diligently analysed the documents he had provided with his full application.

Notice of Competition EPSO/A/12/04 did not provide that the documents submitted in support of professional experience would be evaluated. The Notice provided only for an "administrative analysis" and not a substantive analysis and evaluation of those documents.

THE DECISION

1 Allegedly inconsistent decisions of the Selection Boards in Open Competitions EPSO/A/12/04 and EPSO/A/19/04, and negligent and unprofessional handling of the request for a re-examination

1.1 The complainant participated in Open Competition EPSO/A/12/04(6), organised to recruit administrators in the field of nuclear inspection and research. Upon successfully passing the pre-selection tests, the complainant was invited to submit a full application, by the deadline of 11 February 2005, with a view to being admitted to the subsequent stages of the competition.

On 21 March 2005, EPSO informed the complainant that the Selection Board rejected his application because, contrary to Point A.II.2 of the Notice of Competition and as established on the basis of the documents provided with his full application, he did not have, by the closing date for submission of applications to the competition, that is, 5 April 2004, (i) at least three years of full-time graduate-level professional experience; (ii) two years of professional experience relevant to the duties concerned(7).

Point A.II.2 of Notice of Competition EPSO/A/12/04 provided the following:

"2. Professional experience required

Since obtaining the qualification required for admission to the competition, you must have gained at least three years' full-time graduate-level professional experience, including two years relevant to the duties concerned."

By letter of 22 March 2005, the complainant requested a re-examination of the decision to exclude him from Open Competition EPSO/A/12/04. In his request, the complainant described, in summary, the details of the activities carried out at Y, where he had been employed for two years. Further, the complainant also stated that he had attached to his full application his contract with A, which clearly indicated his position as a civil engineer (which, in turn, demonstrated that he held a university degree) as well as his place of work, that is, the nuclear power plant in Aa. The complainant also explained that for confidentiality reasons he could not disclose certain parts of his contract with A.

Shortly after his request for a re-examination of his application, EPSO informed the complainant that the Selection Board in Open Competition EPSO/A/19/04(8), organised to recruit administrators in specialised fields of civil engineering, engineering, chemistry/chemicals/chemical engineering and aviation, had retained his application. On 7 May 2005, the complainant communicated this decision to EPSO and stated, in essence, that, although several of the admission criteria were identical in both Open Competition EPSO/A/12/04 and Open Competition EPSO/A/19/04, the Boards came to two diametrically opposed decisions on the basis of the same supporting documents provided.

By letter of 12 May 2005, EPSO informed the complainant that the Selection Board in Open Competition EPSO/A/12/04 confirmed its decision not to admit him to the next stage of the competition. EPSO quoted Point A.II.2 of the Notice of Competition and informed the complainant that on the basis of documents he had provided by the deadline for submission of full applications, that is, 11 February 2005, the Board could not verify if he had fulfilled the conditions stated in Point A.II.2. In his CV, under the heading "Professional experience", the complainant had mentioned his employment as a research assistant at Y with a very brief description of the duties carried out in that position. However, this description had not been proved or supported in any way by the documents attached to the application which did not contain any description of the duties carried out or the subjects studied. Similarly, the documents that the complainant attached to his application with regard to his employment as a civil engineer at "B" (sic) did not prove that he had been active in the field of nuclear inspection, research and/or nuclear engineering at the nuclear power plant in Aa. Furthermore, it was also stated in the letter that the Board, which was itself bound by respect for confidentiality, understood the complainant's arguments regarding the disclosure of certain classified information. However, the Board could not, on the basis of the documents provided by the complainant by the deadline of 11 February 2005, admit him to the competition. It was also stated in the letter that the arguments put forward by the complainant in his request of 22 March 2005 were much more complete than those contained in his full application but, in order to ensure the respect of equal treatment of the candidates, the Board had to consider them as submitted after the deadline.

In his complaint to the European Ombudsman, the complainant alleged that the decision to exclude him from Open Competition EPSO/A/12/04 was inconsistent with his admission to Open Competition EPSO/A/19/04 and that his request for a re-examination of the exclusion was handled in a negligent and unprofessional way.

The complainant made, in essence, the following arguments in support of his allegation:

(i) He noted that several conditions of admission to Open Competitions EPSO/A/12/04 and EPSO/A/19/04 were identical, such as those requiring at least three years of full-time graduate-level professional experience, and added that he had submitted the same documents in both competitions. He stated that, while the Selection Board in Open Competition EPSO/A/19/04 had admitted him to the competition, the Board in Open Competition EPSO/A/12/04 had excluded him from the competition. He stated that the Boards' decisions in these two cases were diametrically opposed and were reached on the basis of what he referred to as a "purely administrative decision" concerning his application and the documents submitted.

(ii) EPSO's letter of 12 May 2005 referred to the complainant's professional experience at "B", where he had never worked, instead of "A" where he was actually employed. This error indicated an unprofessional handling of his request for re-examination of his application, which could have had serious damaging effects on the outcome of his application.

(iii) The Selection Board stated that, although the arguments in his request for re-examination were much more complete than his full application, it could not take them into consideration because they were submitted after the deadline. In this regard, the complainant explained that he sent his request for re-examination by registered mail the day after he had been informed of the decision to exclude him from the competition, thus well within the 20-day deadline for submitting such a request as provided in the Notice of Competition.

(iv) In the same context, the complainant argued that his request for re-examination did not contain any new document but was based solely on the documents he had attached to his full application and could therefore not have been more complete.

(v) "The Commission" should have known the duties carried out and the subjects studied at Y, since it had concluded numerous research contracts with that unit. In case the flow of information between the different departments of "the Commission" was hindered, its "recruitment service"(9) should have checked the relevant and publicly accessible website of Y for the detailed description of the duties carried out and the subjects studied.

(vi) His work contract with A clearly mentioned the function he carried out (civil engineer) and the place of work (nuclear power plant in Aa), which proved that he was active in the nuclear field.

1.2 As regards the comparison of Open Competitions EPSO/A/12/04 and EPSO/A/19/04, EPSO pointed out in its opinion that the two competitions were not identical. The aim of Open Competition EPSO/A/12/04 was to recruit administrators in the field of nuclear inspection and research, whereas the aim of Open Competition EPSO/A/19/04 was to recruit administrators in other specialised fields, notably civil engineering, engineering, chemistry/chemicals/chemical engineering and aviation. The notices of the two competitions provided that the candidates must have had sufficient professional experience relevant to the duties concerned but the nature of the duties was different for each competition. A candidate for a competition, seeking annulment of a selection board's decision to reject his application, cannot, under any circumstances, rely on conditions of admission to other competitions which are organised according to different procedures and which pursued different aims(10).

As regards the handling with the complainant's request for re-examination, EPSO recalled that, according to the established case-law of the Community Courts, a Selection Board is bound by the wording of a notice of competition, in particular by the conditions of admission as set out in the notice. Point A.II.2 (Professional experience required) of Notice of Competition EPSO/A/12/04 provided that "[s]ince obtaining the qualification required for admission to the competition, [candidates] must have gained at least three years' full-time graduate-level professional experience, including two years relevant to the duties concerned" (emphasis in original). It was expressly provided in Notice of Competition EPSO/A/12/04 that it was for the candidates to provide all the information and documents which they considered useful in order to allow the Board to verify if they met the conditions set out in the Notice. Notice of Competition EPSO/A/12/04 also expressly stated that the candidates must provide proof of citizenship, and evidence of diplomas and professional experience. As regards professional experience, in particular, the Notice required that the certificates should clearly show the precise nature of the duties carried out.

In response to the complainant's request for re-examination of his application and review of the Board's decision to exclude him from Open Competition EPSO/A/12/04, EPSO informed the complainant that the Board could not admit him to the competition because the evidence provided by him by the deadline for submission of full applications, that is, 11 February 2005, was insufficient. In particular, the evidence in question did not adequately describe the duties that he had carried out or the subjects which he had studied, or prove that he had been active in the field of nuclear inspection. The Board could not take into consideration the complementary explanations regarding different employments, contained in his request of 22 March 2005, because they were provided after the deadline for submission of the full applications. It was thus not true that the Board excluded the complainant from Open Competition EPSO/A/12/04 for "purely administrative" reasons. In the absence of a precise description of the duties performed by the complainant, the Board was not in a position to establish whether he effectively possessed necessary and relevant experience in the nuclear field. The decision to exclude the complainant from the competition was therefore legitimate and the Board respected the relevant provisions of Notice of Competition EPSO/A/12/04.

In its letter of 30 May 2005, EPSO corrected the mistake regarding the complainant's employer, A. This regrettable mistake could not be considered as evidence of an improper handling of his application, or a lack of professionalism, unreliability or a lack of seriousness in this regard, as argued by the complainant, but as a simple typing mistake. The Selection Board examines all requests for re-examination of an application with care and every dossier is given, in substance, individual attention. It is only after it has taken account of all the elements and arguments put forward in a request that the Board asks EPSO to transmit its conclusions to the candidates.

1.3 In his observations, the complainant maintained his allegation and added that the erroneous reference to his employer in EPSO's letter of 12 May 2005 was corrected only after his requests for re-examination and after he had complained to the Ombudsman. This showed that the Selection Board did not examine his professional experience correctly, since it held that he had not provided all the relevant documents, whereas it used the ones that were provided in an improper way.

The complainant also recalled, in summary, that, in its letter of 21 March 2005, EPSO stated that the Selection Board had excluded him from Open Competition EPSO/A/12/04 because (i) he had not demonstrated that he had three years of graduate-level professional experience; (ii) he had not demonstrated that he had two years of professional experience in the relevant field. The Board's decision was thus based on these two reasons and not only on the latter. In its opinion, EPSO did not explain why the Board had not recognised the three years of graduate-level professional experience, whereas the documents that he had provided with his full application clearly proved that he had that experience. The complainant therefore questioned whether the Board had indeed diligently analysed the documents he had provided with his full application.

The complainant further stated that Notice of Competition EPSO/A/12/04 did not provide that the documents submitted in support of professional experience would be evaluated. The Notice provided only for an "administrative analysis" and not a substantive analysis of those documents.

1.4 The Ombudsman first notes that the allegation here concerned is essentially about the consistency of the decisions of the Selection Boards in Open Competitions EPSO/A/12/04 and EPSO/A/19/04 (first part) and the allegedly negligent and unprofessional handling of the complainant's request for re-examination (second part). The Ombudsman will assess the merits of the allegation by examining these two parts in light of the arguments submitted.

1.5 As regards the first part of the complainant's allegation, the Ombudsman notes that, as indicated by EPSO in its opinion, the two competitions were not identical in this regard. The minimum professional experience required under Open Competition EPSO/A/12/04 was not identical to the experience required for Open Competition EPSO/A/19/04. In particular, the experience would have to be relevant to the duties concerned, which were not the same for each competition. It clearly follows from the aforementioned that the first part of the allegation cannot, in any event, be sustained.

1.6 Before examining the second part of the allegation, the Ombudsman notes (i) that it is for the Selection Board to assess in each case whether the certificates produced or the experiences of a candidate correspond to the level required by the Notice of Competition(11); and (ii) that the Board enjoys a wide margin of discretion when carrying out this assessment(12). In this regard, the Ombudsman's role is not to substitute his assessment to that of the Board but rather to examine, in particular in view of the complainant's arguments, whether the latter judgment is vitiated by a manifest error of assessment.

1.7 The Ombudsman notes that Point C.3 (Scrutiny of applications) of Notice of Competition EPSO/A/12/04 provided that the "selection board will examine candidates files to determine whether they meet the conditions laid down in (...) the competition notice." It was therefore the Selection Board's duty to examine the evidence provided by the complainant in such a way as to enable it to establish whether he met the relevant conditions as regards professional experience.

As suggested by EPSO, the mistake concerning the wrong reference in EPSO's letter of 12 May 2005 to "B" as his employer instead of "A" is of a de minimis nature. Moreover, it has not been established that the mistake was such as to vitiate the Board's decision to exclude the complainant from the competition(13).

The Ombudsman also notes that Point C.3 (Documents to enclose with your application form) of Notice of Competition EPSO/A/12/04 expressly required the candidates to provide "full details of (...) research and professional experience on [their] application form". In the same Point C.3, the candidates were asked to compile and attach "evidence of professional experience clearly indicating (...) the exact nature of the duties carried out" (emphasis added). After a careful examination of the complainant's full application for Open Competition EPSO/A/12/04 and of the documents attached to it(14), the Ombudsman finds that the Selection Board could reasonably conclude that the information contained in the application did not enable it to establish whether, as required by the Notice of Competition, he effectively possessed at least two years of professional experience relevant to the duties concerned.

As regards the information provided by the complainant in his request for re-examination dated 22 March 2005, it must be noted that it appeared to be more detailed than his full application. In this regard, the complainant's request contained, for example, a detailed description of the duties carried out at Y, which was not contained in the full application. Nevertheless, the Ombudsman considers justified EPSO's position that the Board could not, pursuant to Point C.3. of the Notice of Competition, take that information into consideration, since it was provided after the relevant deadline, that is, 11 February 2005. The 20-day deadline for submission of a request for re-examination was clearly not intended to result in the extension of the above deadline.

Further, the Ombudsman cannot accept the complainant's argument that "the Commission" should have known the nature of the duties carried out and subjects studied at Y, since it concluded numerous contracts with that unit. The Ombudsman first points out that Open Competition EPSO/A/12/04 was organised by EPSO, which is an interinstitutional body designed to organise and carry out open competitions for the institutions of the European Communities(15) and is not a "recruitment service" of the Commission. The Ombudsman also recalls that the Notice of Competition clearly provided in Point C.3. that candidates "must give full details of (...) studies, research and professional experience (...)." The Notice also required candidates to compile and attach with their application a "copy (...) of evidence of professional experience clearly indicating (...) the exact nature of the duties carried out" (emphasis added). In addition, the Ombudsman also notes in this context that it was not for the Selection Board to conduct an investigation in order to verify whether the complainant fulfilled the conditions laid down in the Notice of Competition(16).

The Ombudsman also cannot accept the complainant's argument that his contract with A clearly stated the place of his employment, that is, the nuclear power plant in Aa, which allegedly proved that he was active in the nuclear field, since no such clear, explicit reference is made anywhere in the contract concerning the Aa plant. The only reference to the place of employment in that document is "[address]" which cannot be held as clearly indicating that the complainant worked in a nuclear power plant. Moreover, this document did not refer to the duties carried out by the complainant. And, as indicated in the previous paragraph, it was not for the Selection Board itself to investigate where exactly the complainant worked and what was the nature of his tasks, in order to verify whether he satisfied the conditions laid down in the Notice of Competition(17).

Finally, regarding the content of EPSO's letter of 21 March 2005, informing the complainant of the Selection Board's decision to exclude him from the competition, the Ombudsman notes that the Board must state clearly, in its decision not to admit a candidate to the tests, the conditions in the notice of competition which it considers that the candidate has not satisfied(18). Where there is a large number of candidates, the Board may initially confine itself to stating the reasons for its refusal in a summary manner and informing the candidates only of the criteria and the result of the selection(19). The Board must nevertheless subsequently provide an individual explanation to those candidates who expressly ask for it(20). In light of the foregoing, the Ombudsman notes that, by letter of 12 May 2005, EPSO had duly provided the complainant with an individual, specific explanation as to why he had been excluded from the competition.

1.8 In light of the above considerations, the Ombudsman concludes that the allegation has not been substantiated. Consequently, the Ombudsman finds no corresponding instance of maladministration.

2 Claim that EPSO should admit the complainant to Open Competition EPSO/A/12/04

2.1 The complainant claimed that EPSO should admit him to Open Competition EPSO/A/12/04.

2.2 In light of the Ombudsman's findings in part 1 of the present decision the Ombudsman cannot uphold the complainant's claim.

3 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 be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2004 C 54 A, p. 1.

(2) The letter in original stated:

" En effet, contrairement aux dispositions de l'avis de concours,

• d'après les indications fournies dans votre acte de candidature, vous n'avez pas acquis une expérience professionnelle de niveau universitaire d'une durée minimale de trois ans à la date du 5 avril 2004 (point A.II.2 de l'avis de concours).
• d'après les indications fournies dans votre acte de candidature, à la date du 5 avril 2004 vous n'avez pas acquis une expérience professionnelle de deux ans en rapport avec la nature des fonctions (point A.II.2 de l'avis de concours)."

(3) OJ 2004 C 96 A, p. 19.

(4) By "recruitment service" the Ombudsman understands the complainant to refer to EPSO.

(5) Case T-82/92 Cortes Jimenez and others v Commission [1994] ECR I-A-69 and II-237, paragraph 44. The original wording of the paragraph is the following: "un candidat à un concours ne peut utilement se prévaloir, à l'appui d'un recours dirigé contre la décision du jury de ne pas admettre sa candidature, des conditions d'admission à d'autres concours (...) organisés selon des modalités distinctes et poursuivant des finalités différentes."

(6) OJ 2004 C 54 A, p. 1.

(7) The letter in original stated:

"En effet, contrairement aux dispositions de l'avis de concours,

• d'après les indications fournies dans votre acte de candidature, vous n'avez pas acquis une expérience professionnelle de niveau universitaire d'une durée minimale de trois ans à la date du 5 avril 2004 (point A.II.2 de l'avis de concours).
• d'après les indications fournies dans votre acte de candidature, à la date du 5 avril 2004 vous n'avez pas acquis une expérience professionnelle de deux ans en rapport avec la nature des fonctions (point A.II.2 de l'avis de concours)."

(8) OJ 2004 C 96 A, p. 19.

(9) By "recruitment service" the Ombudsman understands the complainant to refer to EPSO.

(10) Case T-82/92 Cortes Jimenez and others v Commission [1994] ECR I-A-69 and II-237, paragraph 44.

(11) See Case F -12/05 Tas v Commission, judgment of 11 July 2006, not yet reported, paragraph 39.

(12) Cf. Case T-115/89 Hulguera v Parliament [1990] ECR II-831, paragraph 54.

(13) Cf. Case F-22/05 Neophytou v Commission, judgment of 13 December 2006, not yet reported, paragraph 60: "(...) an irregularity that occurs during the tests of a competition does not affect the lawfulness of the tests unless it is substantive in nature and capable of distorting the results of the tests."

(14) The Ombudsman further notes that under point 10 (Professional experience) the complainant inserted the following as "Nature et description des tâches":

"Assistant de recherche (Ingénieur de Projets, personnel scientifique) au sein de Y. Projets de recherche et développement scientifiques et technologiques dans le domaine de l'énergie (classique, nucléaire, renouvelable), Activités académiques et d'encadrement (labo, séances d'exercices, cours, mémoires)".

He also inserted the following: "Cadre - Ingénieur Civil du 01/01/2003 au 31/12/2004: Junior Technical Advisor, [xxx] [;] depuis le 01/01/2005: Nuclear Safety Engineer [xxx]". With regard to the first contract, the Ombudsman notes that the complainant indicated "06/11/2000" as the starting date and "05/11/2000" as the end date (emphasis added). The Ombudsman further notes that the complainant enclosed two work contracts: (i) a work contract between himself and Y, and (ii) a work contract between himself and A. The first contract contained, besides the names of the contract parties and the complainant's birth date and address, only the starting date and the finishing date of the contract, that is, dd/mm/2000 until dd/mm/2002. In the second contract, the complainant removed a considerable part of the text under title "Lieu de travail et mobilité". The remaining disclosed part indicated only the address of the first place of the complainant's work - "[address]". The rest of the work contract, as presented by the complainant following his removal of the parts that he considered confidential, only gives, in essence, the details of the parties to the contract, the starting date of the employment and mentions that the contract is concluded for an indefinite period of time. The contract does not mention the nuclear power plant in Aa nor does it indicate or describe, in any way, the duties carried out by the complainant. Finally, the Ombudsman notes that the complainant's full application does not contain any other description or document related to the complainant's professional experience.

(15) See Article 1 of the Decision of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the representative of the European Ombudsman (OJ 2002 L 197, p. 56).

(16) Cf. Ombudsman's decision on complaint 1587/2005/BB, point 2.4 and cf. Case T-145/02 Petrich v Commission [2004] ECR II-3381, I-A-275, II-1231, paragraph 78.

(17) Cf. Ombudsman's decision on complaint 1587/2005/BB, point 2.4 and cf. Case T-145/02 Petrich v Commission, paragraph 78.

(18) Cf. Case T-55/91 Fascilla v Parliament [1992] ECR II-1757, paragraph 32.

(19) Cf. Case T-55/91 Fascilla v Parliament, cited above, paragraph 33.

(20) Cf. Case T-55/91 Fascilla v Parliament, cited above, paragraph 35.