The background to the complaint

1. On 25 November 2010, the complainant (a German national) applied to take part in competition EPSO/AST/103/10 - Archive and document management - Assistants (AST 3). In his application, he put forward that, among others, he had undergone the following vocational trainings:

1) Industrial Management Assistant[1] (February 1989 - July 1990)

2) Bank Business Management Assistant[2] (February 1995 - July 1997)

2. The relevant notice of competition[3] (the 'notice') provided for the following specific eligibility conditions as to qualifications and professional experience:

"2. Qualifications

A level of education which corresponds to a completed post-secondary diploma in archiving or document management ['option 1']

OR

a level of education which corresponds to a completed post-secondary diploma, followed by a course of at least 1 year in archiving or document management, attested by a diploma. ['option 2']

3. Professional experience

After obtaining the diploma required, at least 3 years' professional experience in archiving and/or document management. Additional training attested by a diploma obtained in the course of full-time studies in the field of archiving/document management can be taken into account, counting for up to 1 year."

3. On 8 March 2011, EPSO informed the complainant that the Selection Board had decided not to admit him to the competition, given that he did not demonstrate the necessary qualifications and/or the necessary professional experience as provided for in the notice.

4. On 18 March 2011, the complainant appealed EPSO's decision of non-admission and requested its review. He moreover requested access to the Selection Board's file on its decision of non-admission and claimed that he should be invited to the case study examination.

5. On the content, the complainant gave more detailed information on his diplomas and his professional experience. With regard to his qualifications, he argued that his vocational training as Industrial and Bank Business Management Assistant meant that he satisfied the requirement as to a qualification in archiving or document management, as provided for in the notice. In addition, he stated that the German educational system only offers a single course of studies entitled "archivist", while many other vocational and degree programmes - such as the Industrial and Bank Business Management Assistant programmes - include a thorough education in archiving and document management. The non-admission to the relevant competition of all persons having obtained a satisfactory education in archiving and document management by means of successful completion of a course of study other than the specific "archivist" course would therefore be unfair.

6. Furthermore, the complainant claimed to have more than 19 years of professional experience in archiving and document management, acquired in both the private sector and Union institutions and bodies. In case EPSO were to take the view that this professional experience is only partly relevant to the competition, the complainant claimed that it should, at least, recognise that he satisfies the requirement of three years of professional experience.

7. On 1 April 2011, EPSO replied to the complainant's request to review its decision of non-admission. EPSO pointed out that, after a re-examination of his application, the Selection Board had decided to uphold the initial decision of non-admission. EPSO reiterated that he did not demonstrate the educational qualifications laid down in Annex II, point 2 of the notice of competition.

8. On 3 May 2011, the complainant turned to the Ombudsman.

The subject matter of the inquiry

9. The present inquiry covers the following allegations and the following claim:

Allegations:

1. EPSO's decision not to admit the complainant to the competition EPSO/AST/103/10 was wrong.

2. EPSO discriminated against the complainant by establishing in the notice requirements concerning qualifications that could not be met by applicants who received their education in Germany.

Claim:

EPSO should review its decision and allow the complainant to proceed to the next stage of the competition.

10. In his complaint, the complainant had also alleged that EPSO failed to grant him access to the Selection Board's file on its decision of non-admission and claimed that such access should be granted.

11. The Ombudsman noted that the complainant had not argued that this request was based on any specific right of access. However, if the complainant wished to rely on Regulation 1049/2001,[4] which foresees a two-stage procedure, his complaint would have been inadmissible, given that he had not yet made all the appropriate prior administrative approaches since he did not make a confirmatory application. If the complainant wished to base his request on the 'right to access' contained in Article 13 of Regulation 45/2001,[5] the three month deadline laid down therein had not yet expired when the complaint to the Ombudsman was made. The Ombudsman, therefore, concluded that the above-mentioned allegation and claim were inadmissible.

The inquiry

12. On 30 May 2011, the Ombudsman asked EPSO to provide an opinion on the first allegation and the corresponding claim put forward by the complainant.

13. EPSO presented its opinion on 5 July 2011. This opinion was forwarded to the complainant, who submitted his observations on 24 July 2011.

14. On 12 March 2012, the Ombudsman asked EPSO to provide a supplementary opinion on the second allegation, which the complainant had raised in his observations on EPSO's opinion.

15. EPSO presented its supplementary opinion on 30 April 2012.

16. On 15 July 2012, the Ombudsman asked EPSO for further information concerning this case.

17. EPSO sent its reply on 5 July 2012. This reply and EPSO's further opinion were forwarded to the complainant, who submitted his observations on 31 July 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

18. The Ombudsman notes that the first allegation and the claim concern the decision of the Selection Board not to admit the complainant to the competition because it considered that he did not demonstrate the necessary qualifications and/or the necessary professional experience as provided for in the notice. It follows from the well-established case-law of the Court of Justice of the EU that Selection Boards have a wide margin of discretion when assessing applications. Against this background, the Ombudsman considers it useful to point out that he has consistently taken the view that, in cases such as the one at hand, his review must be limited to examining whether a manifest error of assessment or a procedural mistake has occurred. In other words, it is not for the Ombudsman - nor would he be empowered - to substitute the assessment of the Selection Board with his own.

19. In its opinion, EPSO put forward that the Selection Board alone is responsible for the assessment of the eligibility of candidates and enjoys discretion in doing so, while EPSO is merely responsible for carrying out administrative duties. The Ombudsman notes that the relevant Selection Board operated under the auspices of EPSO. What is more, the Ombudsman considers it useful to point out that, even if the Selection Boards have discretion in exercising their duties and powers, this does not change the fact that, in the framework of complaints as well as court applications challenging the Selection Boards' decisions, it is EPSO that bears the responsibility for these.

20. Given that the complainant's second allegation challenges the relevant requirement concerning the educational qualifications and the first allegation deals with the application of said requirements, the Ombudsman will commence his assessment with the second allegation before examining the first allegation and the related claim.

A. Alleged discrimination by establishing requirements concerning qualifications that could not be met by applicants who received their education in Germany.

Arguments presented to the Ombudsman

21. The complainant criticized that the requirements set out in the notice could not be met by applicants who received their education in Germany because the German educational system only offered a single course of studies entitled "archivist". In the complainant's view, EPSO therefore discriminated against him as a German applicant.

22. EPSO pointed out that even though it is responsible for the publication of the notice, its content and notably the eligibility criteria were based exclusively on the needs expressed by the institutions. EPSO underlined that in order not to exclude lesser known or unknown diplomas, the Selection Board, which included specialists in the field of archiving and document management, did not compile a list of diplomas meeting the requirements of the notice. However, before it examined the applications, it set out certain criteria so as to assess whether or not candidates met the eligibility conditions. In so doing, it took into account also post-secondary diplomas that could be considered equivalent to those sought by the notice. Candidates had to show that they possessed a diploma in archiving or document management (option 1); for those candidates, who could not satisfy option 1, the notice included a further option, which made it possible to replace the specific post-secondary diploma with any post-secondary diploma, as long as it was followed by a course of at least one year in archiving or document management (option 2).

23. All candidates were evaluated on the basis of the conditions set out in the notice and they had to prove that they met the conditions for one the two above-mentioned options. There was no discrimination on the basis of the Member State in which the education was received because the Selection Board made allowances for differences between the education systems. The notice did not discriminate against the complainant, given that applicants having received their education in Germany were able to meet the relevant requirements.

24. EPSO stated that three German institutes delivered degrees satisfying the conditions concerning option 1. As regards option 2, EPSO stated that among the candidates having received their education in Germany, it could not find a candidate admitted on that basis and thus could not provide an example.

25. EPSO added that, according to case-law, a Notice requiring a particular type of diploma that does not exist in one Member State cannot be considered as discriminating against the citizens of that Member State as long as it did not exclude applications of citizens of that Member State holding relevant degrees obtained in other Member States.[6]

26. The Ombudsman carried out further inquiries and asked ESPO to indicate examples of German courses of at least one year in archiving or document management, attested by a diploma, which would have been considered as meeting the requirements of the competition.

27. In response to the Ombudsman's further inquiries, EPSO confirmed that it indeed only provided examples of degrees which fell under option 1. This was due to the fact that the Selection Board had not compiled a list of diplomas upfront that would meet the requirements of the notice. For both options, therefore, EPSO could only provide examples of diplomas that were actually presented by candidates and was not in a position to provide an example of a German diploma under option 2 as no candidate presented such a diploma for the Selection Board to evaluate. EPSO stressed, however, that the Selection Board also allowed candidates to demonstrate that a diploma they had obtained could be considered equivalent to the required diploma.

28. Even if a diploma falling under option 2 were not to exist in Germany - which EPSO could neither confirm, nor deny - this could not be considered as discriminating against German citizens in light of the case law of the Civil Service Tribunal.[7]

29. In his observations, the complainant argued that EPSO failed to take into account his and the Ombudsman's submissions and that he did not have any further observations to make.

The Ombudsman's assessment

30. It appears useful to note that the Court of Justice has consistently held that the principle of equal treatment requires that identical situations should not be treated differently and different situations should not be treated equally, unless such treatment is objectively justified.[8]

31. EPSO explained that German candidates could meet the conditions concerning option 1 and referred to the possible types of degrees based on the candidates admitted to the competition; contrary to what the complainant claimed, there was not only one relevant German post-secondary diploma but three. The complainant did not dispute these explanations. Thus, it is clear that candidates having received their education in Germany could meet at least the conditions concerning one of the two alternative options as regards qualifications and that such candidates did have access to the competition in question.

32. It is true that EPSO was unable to identify a diploma awarded in Germany that would meet the conditions concerning option 2. It is therefore perfectly possible that, as the complainant submits, no such qualification exists and that applications who received their education in Germany would thus be unable to fulfil the conditions concerning option 2.

33. It should however be recalled that the complainant alleged that EPSO discriminated against the complainant by establishing in the notice requirements concerning qualifications that could not be met by applicants who received their education in Germany. Given that it is clear that such applicants were able to meet the conditions for option 1, and were thus able to take part in the relevant competition, the Ombudsman considers that no discrimination was established as regards candidates having received their education in Germany.

B. The allegedly wrongful decision not to admit the complainant to competition EPSO/AST/103/10 and the related claim

Arguments presented to the Ombudsman

34. The complainant submitted that EPSO had not correctly interpreted the conditions set out in the notice and thus wrongly refused to admit him to competition EPSO/AST/103/10. The complainant put forward that he complied with the relevant conditions for admission. In this context, he submitted that his post-secondary education qualifications as an Industrial Management Assistant and Bank Business Management Assistant complied with the requirements to have either a main education or supplementary education in archiving or document management. The complainant provided copies of the learning plans for the qualifications he had obtained. In particular, he argued that the education as Bank Business Management Assistant, which normally lasted three years, should in view of its course substance be considered as a one-year education in archiving or document management.

35. As regards professional experience, the complainant put forward that he has been employed in office and administrative activities and worked in archiving or document management since 1990. In his view, this entire period corresponded to at least one of the types of professional experience mentioned under point 4 of the relevant section of the notice[9]. The complainant submitted that it would be difficult to find persons having worked exclusively in archiving or document management. He therefore considered that EPSO should invite him to the next stage of the competition. The complainant replied that, in his view, failed to take into account his education and professional experience.

36. In its opinion, EPSO explained that, based on the relevant requirements of the notice, the Selection Board could not take the view that the diplomas obtained by the complainant - considering the subjects studied (e.g. accounting, data processing, economic and social studies etc.) - corresponded sufficiently closely to the specific field of the competition, namely, archiving and documentation management.

37. With regard to the complainant's professional experience, EPSO referred to the information provided in the complainant's electronic application and pointed out that the complainant's main tasks in the different employments did not consist of archiving and document management, but were, mostly, tasks related to field of finances and banking administration. The majority of the tasks carried out by the complainant corresponded to routine tasks that involved archiving documents, but did not correspond to the specific profile sought by the notice. Thus, the complainant's professional experience could not be considered to correspond sufficiently closely to the specific field of the competition and the nature of duties as defined in the notice.[10]

38. In his observations, the complainant argued that his employment at a bank covered the tasks mentioned by the notice. He emphasised that his jobs at banks and within EU institutions had involved daily work with archives and that he therefore met the conditions of the notice with regard to the duties carried out in his previous employments.

The Ombudsman's assessment

39. The Selection Board took the view that the complainant failed to meet two conditions, namely, as regards (i) educational qualifications and (ii) professional qualifications. In order to be eligible, a candidate had to meet both conditions. The Ombudsman will consider the assessment of the two conditions in turn.

On the educational qualifications

40. The complainant essentially argued that his qualifications as Industrial Management Assistant and Bank Business Management Assistant satisfied the requirement to have either a main education (option 1) or supplementary education (option 2) in archiving or document management. The Selection Board took the view that, based on the subjects studied (e.g. accounting, data processing, economic and social studies etc.), the relevant degrees did not sufficiently closely correspond to the specific field of the competition, namely, archiving and documentation management.

41. In the Ombudsman's view, the complainant's qualifications would seem to be specific to the purpose pursued by the relevant vocational training in Germany, that is, a professional career in industry or banking administration, respectively. The Selection Board's view that the said qualifications are not sufficiently close to those required by the notice does therefore not appear unreasonable. Consequently, no manifest error of assessment can be established in this regard.

On the professional qualifications

42. EPSO emphasised that the complainant's main tasks did not consist of archiving and document management, but were, mostly, tasks related to the finances and banking administration. The Ombudsman notes from the complainant's application that the complainant would appear to have had some experience in archiving and document management (notably, sixteen months in his last listed employment). The Ombudsman also notes, however, that the notice required three years of such professional experience. Furthermore, the Ombudsman considers that it was not unreasonable for the Selection Board to conclude, on the basis of the information provided in the complainant's application, that the complainant's main tasks in his previous employments did not correspond sufficiently closely to the specific field of the competition and the nature of duties as defined in the notice. In fact, it would seem that the complainant's professional duties were predominantly other than those linked to archiving and documents management. Against this background, the Ombudsman considers that no manifest error of assessment has been established with regard to the complainant's professional experience.

43. Consequently, no maladministration has been found with regard to the first allegation and the related claim.

C. Conclusions

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

No maladministration has been established with regard to this complaint.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 18 September 2013

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[1] In German: Industriekaufmann.

[2] In German: Bankkaufmann.

[3] OJ 2010 C 292 A, p. 24

[4] OJ 2001 L 145, p. 43.

[5] OJ 2001 L 8, p. 1.

[6] EPSO referred to Case F-53/07 Iordanova v. Commission [2008] ECR, p. I-A-1-00377, paragraph 46. In that case, the applicant argued that no post-secondary education diploma in the secretarial field existed in Bulgaria. In paragraph 46, the Civil Service Tribunal held that:

"In that regard, it is necessary first of all to point out that the notice of competition did not expressly require as a condition for admission to the competition possession of a diploma in the secretarial field, but rather a diploma in a field relevant to the duties described in the notice of competition. Moreover, the Commission cited in its defence and at the hearing examples of diplomas which, although not specifically relating to the secretarial field, were regarded by the selection board as fulfilling the conditions of the notice of competition. Moreover, as the Commission stated, in particular in its defence, the notice of competition did not exclude diplomas obtained in Member States other than Bulgaria."

[7] See note 6 above.

[8] See Case F-83/07 Zangerl-Posselt v. Commission, not yet reported, paragraphs 71-78.

[9] "4. Selection criteria

As part of the selection on the basis of qualifications, the selection board will take into consideration the following:

1. professional experience within the archives or document management department of a public or private organisation;

2. professional experience in the development of international standards for document management and archives

3. professional experience in the application of international standards for document management and archives;

4. professional experience in the development and use of electronic document management systems, including experience with systems for recording documents, filing plans, management schedules and other relevant tools;

5. professional experience in the development and use of applications for electronic archive management;

6. professional experience in searching for documents in various media (paper, digital, microfiches, audiovisual);

7. professional experience in sorting and describing archives;

8. professional experience in client services or inter-department communications (i.e. with the IT department, operational departments, etc.);

9. professional experience in training procedures;

10. additional training in archiving and/or document management."

[10] The relevant part of the notice reads as follows: "In general, the role of assistants in archive and document management is to develop and implement rules and procedures for the management of documents in a complex and multicultural environment marked by the development of new technologies. They must administer and provide services relating to the current, intermediate and historic archives, and for historical research. In addition, they will be required to disseminate information, provide training, manage teams and take part in/speak before in-house and outside events. It should be properly emphasised that the purpose of this competition is not to recruit information technology (IT) or library science specialists. The main duties involved, which may vary from one institution to another, include:

— Collecting, recording, indexing, filing, sorting, preserving and storing documents in accordance with current international standards, using electronic document and archive management systems,

— establishing, organising and/or updating filing plans, establishing and updating management schedules; helping to guarantee document authenticity, particularly in an electronic environment,

— managing digital archives, including reception and input, cataloguing them, establishing and updating the archiving and document retrieval metadata, by using, setting up and maintaining electronic systems for managing electronic archives,

— writing up historical context descriptions of the collections, entering document and file references, compiling files and

drawing up the content analysis of archives selected for permanent retention based on current international standards,

— undertaking comprehensive search procedures for archived files and documents and assisting visitors and researchers in a technical and professional capacity."