The background to the complaint

1. The complaint concerns the application of the eligibility criteria in Open Competition EPSO/AD/182/10, which concerned the field of industrial economics. The complainant was not admitted to the competition in question because the Selection Board did not consider him to have at least eight years "of working experience related to economic analysis in competition policy and/or industrial economics", as required by the Notice of Competition.

2. The complainant requested that the decision not to admit him to the competition be reviewed. In its response, the Selection Board confirmed its initial decision, arguing that his two years of work experience at company x could not be counted as relevant. The complainant wrote to EPSO again, putting forward a number of arguments and relevant documents to support his assertion that he had sufficient relevant work experience. In its reply dated 3 November 2010, the Selection Board proceeded to clarify its position, while reiterating its decision not to admit the complainant to the competition.

The subject matter of the inquiry

3. In his complaint to the European Ombudsman, the complainant alleged that EPSO's evaluation of his professional experience was vitiated by a number of irregularities.

4. In support of his allegation, the complainant argued that:

(a) the Selection Board was subject to conflicts of interest;

(b) the poor management of the procedures adversely affected his working life;

(c) there were no well-defined criteria for the evaluation of professional experience;

(d) his right to have an independent review of his application was not respected;

(e) the Selection Board interpreted its own rules in an incorrect and opportunistic way;

(f) he was provided with a series of contradictory statements about the selection procedure; and

(g) applicants were discriminated against without any objective basis.

5. The complainant claimed that EPSO should either admit him to the competition or annul the whole selection procedure.

The inquiry

6. The Ombudsman asked EPSO to submit an opinion on the complaint by 31 August 2011. The opinion was forwarded to the complainant, who submitted his observations on 28 September 2011.

The Ombudsman's analysis and conclusions

Preliminary remark

7. In its opinion, EPSO stated that a Selection Board is responsible for determining whether candidates fulfil the specific conditions laid down by the Notice of Competition and for assessing the candidates' performance in light of the conditions published in the Notice. The decisions taken by the Selection Board in this context are its sole responsibility. EPSO is only responsible for organising the competition, that is, for the stages extending from the drafting of the Notice of Competition to the competition's closure. Since Selection Boards do not have their own secretariat, EPSO provides them with administrative, logistical and IT support. EPSO argued that this distinction is very important because it means that EPSO does not have the same decision-making power, and therefore the same responsibility, as a Selection Board.

8. In relation to the above remarks, the Ombudsman refers to his analysis contained in the decision in case 2497/2010/FOR[1]. In that decision, he pointed out that the European Ombudsman is empowered to receive complaints concerning instances of maladministration in the activities of all EU institutions, bodies, offices or agencies (with the exception of the Court of Justice acting in its judicial role). The terms "institutions", "bodies", "offices" and "agencies" are all-encompassing. Thus, any entity falling within the institutional framework of the EU, that is, an entity established by the Treaties or by an act adopted in the implementation of the Treaties, cannot escape review by the Ombudsman in matters concerning alleged instances of maladministration.

9. If an existing institution, body, office or agency establishes functional units within its own organisational structure, any alleged instances of maladministration by those functional units will be attributed to the institution, body, office or agency of which it forms part. Such functional units cannot be understood to constitute separate "institutions, bodies, offices or agencies" within the meaning of Article 228 TFEU. Alternatively, if, through an act adopted in the implementation of the Treaties, a "separate" entity is created within the institutional framework of the EU, that entity will be subject to review by the Ombudsman for any alleged instances of maladministration.

10. On the basis of the foregoing, the Ombudsman finds that if EPSO were to consider that it is not competent to respond to certain allegations that are the subject of an inquiry carried out by the Ombudsman because such allegations relate to the activities of a Selection Board, it should ask the Selection Board in question to respond directly to the Ombudsman. If the Selection Board refuses to respond to the Ombudsman through EPSO, EPSO should inform the Ombudsman of this. In accordance with the powers invested in him by Article 228 TFEU, the Ombudsman will then address his inquiry directly to the Selection Board.

A. Alleged irregularities in the evaluation of professional experience

Arguments presented to the Ombudsman

Conflicts of interest

11. At the time when the complainant applied for the competition in question, he worked as a temporary agent in the Commission. According to the complainant, he and seven other candidates worked in the same team as the chairman and another member of the Selection Board. Two other Selection Board members were former colleagues of the complainant. In the complainant's opinion, these members of the Selection Board had ties with some of the candidates, which went beyond work. He therefore argued that the Selection Board was subject to conflicts of interest. He further contended that it was very likely that candidates with objectively less experience than himself were invited to participate in the competition and that this could be indicative of a lack of impartiality.

12. EPSO argued that the Selection Board was appointed and established in line with the rules laid down in the Staff Regulations. For open competitions common to two or more institutions, the Selection Board consists of a chairman, a number of members appointed by the Appointing Authority, and a number of members appointed by agreement between the Staff Committees of the institutions. This ensures equal representation and objective assessment. The requirements concerning its members' areas of competence vary depending on the specific circumstances of each competition.

13. According to EPSO, the purpose of Open Competition EPSO/AD/182/10 was to draw up a reserve list from which to fill vacant posts in the institutions of the EU, in particular the Council and the Commission. The field targeted in the Open Competition was industrial economics as applied to the implementation of EU competition policy. For competitions, such as the one at hand, which are based on qualifications and tests, Selection Boards are responsible for assessing whether each candidate's qualifications and/or professional experience correspond to the level required by the Staff Regulations and by the Notice of Competition. In this respect, whilst a Selection Board is bound by the wording of the Notice of Competition as published, it has broad powers of discretion.

14. EPSO argued that, given the specific area of Open Competition EPSO/AD/182/10, some members of the Selection Board also occupied posts in departments, whose work related to the field covered by the competition, and may have had professional relations with certain candidates. According to EPSO, EU case-law establishes that the existence of professional relations between an official and a third party does not, in principle, mean that the official's independence is, or appears to be, impaired when that official is called upon to decide on a matter in which that third party is involved. EPSO referred to case T-100/04 Giannini v Commission[2], in which the (then) Court of First Instance held that a conflict of interest occurs only in a situation in which an official, in the performance of his duties, is called upon to decide on the handling or outcome of a matter in which he has a personal interest such as to impair his independence, within the meaning of Article 11a of the Staff Regulations. In the case in question, the Court found that the involvement of a member of the Selection Board in the assessment of a candidate who works or has worked in the same unit or directorate as that Board member does not in itself mean that the member will be deciding upon a matter in the handling or outcome of which he has a personal interest such as to impair his independence. The Court went on to state that the principle that the Selection Board must be impartial requires a member of the board to refrain from taking part in the assessment of a candidate where there is a direct link between the board member and that candidate.

15. EPSO stated that the Civil Service Tribunal has interpreted the nature of this direct link and the concept of impartiality in case F-16/07 Dragoman v Commission[3], in which it stated that the fact that a Selection Board member is personally acquainted with one of the candidates does not necessarily mean that that member will be biased in favour of that candidate. According to the Court, this kind of relationship is not in itself sufficient to show that a Selection Board member has a personal interest likely to call his or her impartiality into question. The Court further stated that requiring a member of a Selection Board not to have any links with candidates would make it extremely difficult, if not virtually impossible, to find persons capable of sitting on a Selection Board in certain specialised areas.

16. EPSO pointed out that Selection Board members are required to declare a potential conflict of interest. EPSO went on to say that, in order to ensure that applications would be impartially examined, the applications that it forwarded to the Selection Board showed only the candidates' reference numbers. Moreover, Selection Board members who had declared a potential conflict of interest with a candidate were not required to examine these applications. EPSO asserted that the case-law of the Court of Justice of the EU has established that the notion of 'conflict of interest' covers every situation, such as family ties with a candidate, understood in the broad sense of the term, financial connections, legal proceedings, or a relationship of subordination with a candidate, which could impair the independence of Selection Board members in the performance of their duties. Selection Board members must, before taking up their duties, sign a confidentiality note which draws their attention to, among other things, the independent and impartial nature of the Board's work. In the competition in question, this confidentiality note was duly signed by each member of the Selection Board.

17. In his observations on EPSO's opinion, the complainant argued that the case-law EPSO referred to is irrelevant. According to the complainant, at least five members of the Selection Board had personal and professional relations with at least 10 of the fewer than 40 candidates selected in the pre-selection procedure, and with at least 4 of the 13 candidates who were finally selected. In the complainant's view, this constitutes a systemic lack of independence. Moreover, this lack of independence does not only concern one of the Selection Board members in relation to one of the candidates, as was the situation in the cases referred to by EPSO.

18. The complainant further argued that the fact that confidentiality agreements were signed by the Selection Board members is irrelevant since it would appear that these agreements were not respected. With regard to the declarations of conflicts of interest, the complainant argued that, given the significant amount of personal links between the candidates and the Selection Board members, they were either not taken into account by EPSO or they were not truthful.

19. According to the complainant, the Selection Board members with whom he spoke stated that, in the competition in question, EPSO was "paranoid" about the conflict of interest issue. This was why it instructed two independent, external members of the Selection Board to oversee the selection procedure. However, as explained in paragraph 29 below, this had an adverse effect on the freedom of the Selection Board members to express their opinion about the relevance of the complainant's experience. The systemic lack of independence thus led to a negative bias and wrongdoing in respect of the complainant.

20. The complainant further argued that the use of reference numbers to represent candidates only provided a false sense of freedom from possible biases. This practice may constitute good management in respect of ensuring impartiality in the examination of the candidates' written work. However, at the stage of the competition which involved 'selection on the basis of qualifications', the Selection Board members had to examine the professional history of candidates whom they often knew very well personally. The information about the candidates' qualifications in fact revealed exactly whom they were.

Working life adversely affected by poor management of procedures

21. According to the complainant, the fact that he complained to EPSO against the decision not to admit him to the competition produced very serious feelings of resentment on the part of the Selection Board members and made his daily life at work very unpleasant. The complainant later informed the Ombudsman that he had been forced to resign from his position within the Commission, due to the unprofessional and unacceptable manner in which he had been treated by the Commission in the context of the selection procedure in question. The complainant therefore argued that the poor management of the procedures adversely affected his working life.

22. EPSO argued that the competition in question was carried out fully in accordance with the provisions of the Notice of Competition and that the rules of procedure were followed and applied equally to all candidates indiscriminately. EPSO considered, therefore, that the procedure had been properly handled.

23. In his observations, the complainant argued that, in its opinion, EPSO failed to address the fact that the way in which the competition and the appeals procedure had been organised caused him great personal harm, since it put him in a situation where he had to argue that his colleagues had erroneously assessed his professional experience. The complainant wrote to Commissioner Sefkovic, among others, about how the competition had been organised. From the Commissioner's response, he considered it clear that Mr Sefkovic thought that the complainant had a negative view of his former colleagues who served on the Selection Board. The complainant argued that this is not true. In fact, he has a very good opinion of the work of his colleagues at the Commission. In his view, however, the statement made by the Commissioner shows the gravity of the problem relating to the way in which the competition was managed.

Evaluation criteria

24. According to the complainant, there should have been clearly defined criteria for determining relevant professional experience. Instead, he argued, the Selection Board had to perform a "rule-of-reason" type of exercise.

25. EPSO pointed out that, according to the Notice of Competition, applicants had to have:

"At least 8 years of working experience related to economic analysis in competition policy and/or industrial economics. Areas of expertise should include the application of state of the art theory and quantitative empirical analysis.

This working experience is relevant only if it has been acquired after the obtention of the diploma giving access to the competition.

A PhD in a related matter in the field of economics obtained in the course of full-time studies can be taken into account for a period of maximum 3 years. If the candidate obtained the PhD diploma in less than 3 years, only the actual duration of the studies will be counted.

Periods of further training related to the required specialisation and undertaken since obtaining the required degree can be taken into account for a period of up to one year."

26. EPSO explained that the Selection Board first examined the specific admission conditions in relation to each application received. In respect of the complainant's application, the Selection Board found that he did not have the required eight years' professional experience in economic analysis, after obtaining the diploma giving access to the competition. The period that the complainant spent working at company x could not be taken into account as professional experience. The nature of the tasks described by the complainant in his electronic application form – coordination of sales activities, negotiations, preparation of tender responses, consulting clients on IT issues – does not correspond to the specific requirements of the Notice of Competition, namely, economic analysis in competition policy and/or industrial economics. The Selection Board could not, therefore, take this period into account.

27. In his observations on EPSO's opinion, the complainant argued that EPSO had failed to explain the criteria which the Selection Board used to conclude that his experience was not relevant. EPSO's response to his complaint, which was based on substantive arguments, was simply composed of a one-line argument, stating, in effect, that his experience was not considered relevant because it was not relevant. EPSO maintained this line of argument in the opinion which it submitted to the Ombudsman. However, such a statement does not constitute an explanation of why his experience was not relevant.

28. Furthermore, according to the complainant, different criteria were applied to different candidates. Given the professional experience of some of the candidates, many of whom the complainant knows very well, it is clear that the Selection Board did not always interpreted strictly the phrase "related to economic analysis...". In some cases, the phrase was interpreted as applying to experience that was 'somewhat' related to economic analysis and/or industrial organisation. In his case, however, the professional experience requirement was interpreted strictly. Such a conclusion is supported by the fact that, in its opinion, EPSO stated that the complainant's experience at company x could not be regarded as relevant because it "had not been acquired in economic analysis in competition policy ..." (emphasis added by the complainant). Accordingly, the criterion for evaluating the complainant's professional experience was not that it had to be "related to economic analysis in competition policy..." (emphasis added by the complainant), but it had to have been acquired precisely "in economic analysis in competition policy...". The complainant also argued that very similar or identical criteria had been applied differently to his experience in an earlier recruitment procedure for the same position and grade.

29. According to the complainant, four Selection Board members informally provided him with information on what went wrong in his case. According to these four members, two other members argued that the complainant's experience was not relevant. A number of Selection Board members who knew how valuable his experience at company x had been for the economic analysis of competition policy argued against this assessment, but were afraid that by insisting, they would risk being accused of bias. They said that he should have added one abstract sentence in his application about his tasks at company x, such as "doing statistical analysis, analysing competition". The complainant considers that such tasks are implicit in any high-level management work. He also explained the relevance of his experience in the letter explaining his reasons for applying, which was part of the online application.

Independent review

30. The complainant did not consider it appropriate that his request for a review of the decision not to admit him to the competition was dealt with by the same people who made the original decision. The complainant therefore argued that his right to an independent review of his application was not respected.

31. According to EPSO, the complainant's right to a review was respected. EPSO pointed out that, in accordance with the provisions published in the Guide to open competitions[4], which forms an integral part of the Notice of Competition, the review was carried out by the Selection Board, that is, by the body set up on a collegial basis which is also the sole body empowered to determine whether or not a candidate fulfils the specific conditions of a competition.

32. EPSO went on to state that, under the provisions of the Guide, candidates may submit a request for review in certain cases, namely, when EPSO has not complied with the provisions governing the competition procedure or when the Selection Board has not respected the provisions governing its work. In accordance with these provisions, the Selection Board carefully examined all the requests for review, including the one submitted by the complainant. It was only after taking note of and analysing all the elements and arguments it had received that it asked EPSO to forward its conclusions to the candidates concerned. EPSO pointed out, however, that, while it is possible to request that a decision be reviewed, this does not mean that the Selection Board is obliged to change a decision that has already been taken. The Selection Board is required to take note of the arguments put forward by the candidate and to review the application in light of the request. However, it is the sole responsibility of the Selection Board, acting within its broad discretionary powers recognised by the case-law, to decide, on the basis of the information available to it, whether or not the specific admission conditions have been met.

Interpretation of rules

33. According to the complainant, the Selection Board considered that it could not take into account the evidence submitted by him when he made his request for review. The complainant argued, however, that, in order to be able to appeal, one must be able to submit arguments and evidence. According to the complainant, his submissions did not contain any new facts, but only explanations illustrating why his experience was relevant. He therefore maintained that, by not taking into account the evidence submitted by him when he made his request for review, the Selection Board interpreted its own rules in an incorrect and opportunistic way.

34. According to EPSO, only the online applications, and not the supporting documents, were examined at this stage of the competition. Based on the information provided by the complainant in his application, the Selection Board considered that only experience that was sufficiently closely related to the specific area of the competition could be regarded as relevant experience. In this respect, the Selection Board used as the basis for its decision the provisions in the Notice of Competition, which constitutes the sole legal framework for the competition. Even if the references had been taken into account at that stage, this would not have changed the Board's decision, since the main activity which the candidate had performed at company x does not correspond to the criteria laid down in the Notice of Competition.

35. In his observations, the complainant argued that the independent explanations and evidence that he provided in support of the relevance of his experience gained at company x should be deemed more reliable than the explanations provided by other candidates in their own characterisation of their experience. However, the Selection Board effectively considered the self-assessments provided by other candidates concerning the relevance of their professional experience to be more relevant than the independent assessments made by people with whom the complainant carried out competition analysis for at least three years. The complainant pointed out that a candidate can write whatever he or she wants in the application form.

36. According to the complainant, the explanations and evidence he provided sought to inform the Selection Board of its error of assessment. However, this evidence was completely ignored. He stated that EPSO's argument that the evidence could not be taken into account because it was not part of the complainant's original application only applies to the initial assessment. It does not apply to the appeal or revision process. The complainant argued that he should be able to bring forward such new arguments in the appeal or revision process. He also contended that the fact that in an e-mail of 1 December 2010, the Chairman of the Selection Board told him that he "would be angry and frustrated as well if [he] were in [the complainant's] situation", is a strong indication of the fact that something went wrong in the assessment of his application.

Contradictory statements

37. The complainant stated that his experience was not considered relevant to the competition in question, which required work experience related to economic analysis in competition policy and/or industrial economics. However, the Selection Board did not question the relevance of his experience for the purposes of carrying out his tasks, which involved economic analysis in competition policy and industrial economics, as a temporary agent at the Commission. He therefore argued that the statements about the selection procedure were contradictory.

38. The complainant considered that, in its opinion to the Ombudsman, EPSO maintained the illogical explanation that the experience attained at company x was 1) relevant for the purposes of his position as a temporary agent in the Commission, and 2) not relevant to the competition in question.

Discrimination

39. The complainant argued that applicants were discriminated against without any objective basis. This argument was developed in a supporting document submitted to the Ombudsman, in which the complainant stated that "[a] candidate may have 7 years, 11 month[s] and 29 days of relevant experience but will be excluded from participating in the competition, while another one with a one day of experience more will be allowed to participate. Such a discrimination is not justified by one of the candidates having more experience - because there is no meaningful way in which this could be argued".

40. EPSO stated in its opinion that discrimination occurs when identical or equivalent situations or performances are treated differently or in an unjustified manner. In the competition concerned, the same criteria for examining the applications were applied to all the candidates. These criteria were published in the Notice of Competition, the essential function of which is to give those interested the most accurate information possible about the nature of the requirements so as to enable them to judge whether or not to apply for the competition.

41. EPSO stated that, in order to comply with Articles 27 and 29 of the Staff Regulations, which aim to secure the services of officials of the highest standards, the Appointing Authority was entitled to require that candidates possess a minimum number of years of professional experience by the deadline for submitting applications for the competition in question. This does not constitute an infringement of the principle of non-discrimination.

42. In his observations on EPSO's opinion, the complainant put forward "possible scenarios" of candidates' professional experience and concluded that the Selection Board should have weighted the relevance of each period of work experience for each candidate. According to the complainant, it is clear that his experience at company x "was weighted at zero relevance" by the Selection Board, which, in his view, is in stark contradiction to EPSO's statement that this experience was relevant for the purposes of carrying out his tasks as a temporary agent in the Commission.

43. According to the complainant, it cannot be proven that a candidate with 7 years, 11 months and 30 days of experience is in any meaningful way different from a candidate with precisely 8 years of experience. In the complainant's view, excluding the person who has only one day less of experience amounts to treating equivalent situations differently.

The Ombudsman's assessment

Conflicts of interest

44. The Ombudsman notes that, according to Article 11a(1) of the Staff Regulations, as well as EU case-law, a conflict of interest only occurs in a situation in which an official, in the performance of his or her duties, is called upon to decide on the handling or outcome of a matter in which he or she has a personal interest. The fact that a Selection Board member works, or has worked, in the same directorate or unit as a candidate does not, as such, mean that the member is called upon to decide on the handling or outcome of a matter in which she or he has a personal interest such as to impair her or his independence[5]. The Civil Service Tribunal has clarified that the fact that a Selection Board member is personally acquainted with a candidate is not sufficient, in itself, to show that the member has such a personal interest, in particular a family or a financial interest, so as to impair his independence[6].

45. The complainant argued that the case-law referred to above is not relevant to Open Competition EPSO/AD/182/10 because, in his view, that competition was vitiated by a systemic lack of independence given the "striking amount of personal links" between Selection Board members and candidates. It appears that the links in question relate to the fact that several of the Selection Board members work or have worked, or are personally acquainted, with several of the candidates. The Ombudsman considers that every such "link" between a Selection Board member and a candidate has to be examined in isolation and on its own merits. The mere fact that members of the Selection Board work with a number of candidates does not in itself, imply that they have a personal interest in giving an advantage to a particular candidate.

46. The Ombudsman underlines that, in order not to be biased, Selection Board members who are acquainted with one or several of the candidates, through work or on a personal basis, may only take into consideration information about these candidates that is in the competition file. The Selection Board members are not allowed to take into consideration any information obtained outside the context of the competition. As regards the present case, this means that, even if certain Selection Board members knew, because of their work relationship with the complainant, that his experience at company x did in fact relate to economic analysis in competition policy and/or industrial economics, they were prohibited from taking this knowledge into account when assessing the complainant's application against the eligibility criteria for the competition. The Ombudsman finds that the Selection Board's disregard of such information, obtained through personal relations with the complainant, does not constitute a negative bias towards him, as the complainant argued. On the contrary, it constitutes a correct application of the Staff Regulations and the Notice of Competition.

47. The Ombudsman acknowledges that the use of reference numbers to represent candidates does not necessarily guarantee the anonymity of candidates at the admission stage of the competition, during which the Selection Board checks the information provided about, for instance, professional experience. However, the Ombudsman does not deem this to be a problem as such, as long as there is no conflict of interest or bias in respect of the candidates.

48. Thus, the Ombudsman does not consider that the complainant has put forward any concrete evidence to suggest that any of the Selection Board members had a personal interest, such as a family or a financial interest, in ensuring that particular candidates succeeded in Open Competition EPSO/AD/182/10. Nor does the Ombudsman consider the complainant to have put forward evidence to support his arguments (i) that the Selection Board was biased because candidates with less than eight years of relevant experience were allowed to participate in the competition and (ii) that this eligibility criterion was interpreted in different ways in respect of different candidates. On the basis of the foregoing, the Ombudsman therefore does not find that the Selection Board was biased or was subject to conflicts of interest.

Evaluation criteria

49. The Ombudsman notes that the relevant Notice of Competition states that, in order for candidates to be eligible to participate in the competition, they had to fulfil certain conditions, among which, specific conditions in respect of professional experience. In particular, candidates had to have "[a]t least 8 years of working experience related to economic analysis in competition policy and/or industrial economics. Areas of expertise should include the application of state of the art theory and quantitative empirical analysis"[7]. In respect of admission to the competition, the Notice set out that "[t]he information given in your on-line application will be checked against the general and specific conditions to identify those applicants who satisfy the eligibility requirements for the competition"[8].

50. The Ombudsman thus notes that, in order to be considered eligible to participate in the competition, candidates had to provide in their online applications information showing that they had the required work experience, both in terms of years and area of expertise. It is clear from the Notice that no other information would be taken into account at the admission stage of the competition. It is true that, as the complainant argued, candidates could write "whatever they wanted" in the application form. However, the information given by candidates in their online applications was verified at a later stage of the competition. If it eventually emerged that the information provided was not borne out by the appropriate supporting documents, the candidate would have been excluded from further participation in the competition[9].

51. In its decision rejecting the complainant's application, the Selection Board stated that the complainant did not possess the required eight years of work experience related to economic analysis in competition policy and/or industrial economics. In response to the complainant's request for review, the Selection Board provided more detailed reasons by stating the following: "[p]lease note that the Selection Board does not question the relevance of your experience at [company x] to carrying out your current tasks within [the Commission]. However, consistent with the evaluation of all applications received in the context of this specific competition, the two years experience at [company x] could not be counted by the Selection Board as relevant, as they were not obtained in an area related to economic analysis in competition policy and/or industrial economics"[10].

52. According to EPSO, the complainant described in his online application the nature of his tasks at company x as consisting of the coordination of sales activities, negotiations, preparation of tender responses and consulting clients on IT issues. The Ombudsman notes that the complainant has not challenged that this was the description he gave in his application.

53. In respect of the Selection Board's decision not to admit the complainant to the competition because of a lack of relevant work experience, the Ombudsman first underlines that, according to consistent case-law of the Court of Justice of the EU, Selection Boards enjoy a wide margin of discretion when assessing the knowledge and ability of candidates for a selection procedure. This assessment can only be reviewed by the EU judicature if the rules which govern the proceedings of the Selection Board have been infringed or in case the assessment is tainted by a manifest error[11].

54. On the basis of the formulation of the Notice of Competition and the complainant's description of his tasks at company x, the Ombudsman finds no manifest error of assessment in the Selection Board's conclusion that the information provided by the complainant in his online application did not establish that the experience gained at company x was related to economic analysis in competition policy and/or industrial economics. In this regard, the Ombudsman considers that the criteria for determining relevant work experience were sufficiently well defined in the Notice of Competition and that the Selection Board applied these criteria within its margin of discretion.

Contradictory statements

55. The Ombudsman acknowledges that the experience in question might in fact be related to economic analysis in competition policy and/or industrial economics. This was acknowledged by the Selection Board in its response to the complainant's request for a review of its decision, when it wrote that it did not question the relevance of the complainant's experience at company x for the purposes of carrying out his tasks as a temporary agent in the Commission. However, this experience, as described by the complainant, did not show that it was related to economic analysis in competition policy and/or industrial economics. Accordingly, in accordance with the provisions of the Notice (see paragraphs 49 and 50 above), this experience could not be taken into account. The Ombudsman therefore does not consider that the statements about the selection procedure were contradictory.

Interpretation of rules

56. The Ombudsman notes the complainant's argument that the evidence concerning the relevance of his experience at company x should be taken into account because, in an appeal, one must be able to submit arguments and evidence. According to the complainant, his submissions did not contain any new facts, but only explanations illustrating why his experience was relevant. In this respect, the Ombudsman reiterates the above conclusion that the explanation demonstrating that certain professional experience was relevant, that is, that it related to economic analysis in competition policy and/or industrial economics, necessarily had to be provided in the online application. When requesting a review of a Selection Board's evaluation of the relevance of his or her professional experience, a candidate may put forward arguments justifying why he or she considers the information provided in the online application to be sufficient to show that the experience was relevant. However, no additional explanations illustrating why that experience was relevant may be taken into account by the Selection Board. The Ombudsman therefore does not consider that the Selection Board interpreted the applicable rules in an "incorrect and opportunistic way" when it did not take into account the above-mentioned evidence while dealing with the complainant's request for a review.

Discrimination

57. The Ombudsman considers it appropriate and reasonable for the institution issuing the Notice of Competition to set a minimum number of years of professional experience, which may vary depending on the grade of recruitment, as an eligibility criterion for participating in certain open competitions. In order to ensure that the Notice of Competition fulfils its goal of informing potential candidates as accurately as possible about the requirements for participating in the competition, and to allow no room for arbitrary decisions in respect of admissions, such an eligibility criterion has to be clearly defined. By clearly defining this criterion, Notice of Competition EPSO/AD/182/10 established a difference between a candidate with 7 years, 11 months and 30 days of professional experience and a candidate with eight years of professional experience. The Ombudsman therefore finds that the fact that the decision to treat these two fictitious candidates (who were in different situations) differently in respect of admission to the competition, did not constitute discrimination. Discrimination only occurs when candidates in an identical situation are treated differently or when candidates in different situations are treated in the same manner, without any objective justification.

Independent review

58. The Ombudsman notes that the word 'review' means 'to look at again'. There is no principle requiring a 'review' to be 'independent' in the way argued by the complainant, that is, to be carried out by persons other than those who made the original decision. However, principles of good administration encompass the right to appeal against decisions adversely affecting the rights or interests of a private person[12]. The aforementioned Guide to open competitions, which constituted an integral part of Notice of Competition EPSO/AD/182/10, provided for both reviews and appeals. It is clear from the provision dealing with reviews that these were to be carried out by the Selection Board itself[13]. The appeals, however, were to be dealt with by other bodies, such as the Director of EPSO and the Civil Service Tribunal[14]. The Ombudsman therefore does not find any breach of the principles of good administration in this regard.

Working life adversely affected by poor management of procedures

59. Given the above conclusions, the Ombudsman finds nothing to suggest that the competition in question was poorly managed by EPSO, as argued by the complainant. If the complainant considers that he has been treated unprofessionally or in an unacceptable manner by the Commission, he should bring this issue to the Commission's attention. If he does not receive a satisfactory response, he could consider submitting a complaint to the Ombudsman against the Commission.

Conclusion

60. On the basis of the foregoing, the Ombudsman finds no maladministration in relation to the evaluation of the complainant's professional experience in the context of Open Competition EPSO/AD/182/10.

B. The claim

61. The complainant claimed that EPSO should either admit him to the competition or annul the whole selection procedure.

62. Given the Ombudsman's finding of no maladministration in respect of the allegation, the complainant's claim must fail.

C. Conclusions

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

There has been no instance of maladministration by EPSO.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 16 February 2012

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[1] Available at: www.ombudsman.europa.eu/cases/decision.faces/en/10526/html.bookmark

[2] Judgment of 12 March 2008, not yet published in the ECR.

[3] Judgment of 30 April 2008, not yet published in the ECR.

[4] OJ 2010 C 184A, p.1.

[5] Case T-100/04 Giannini v Commission, cited above, paragraph 223.

[6] Case F-16/07 Dragoman v Commission, cited above, paragraphs 43-44.

[7] Point 3 of Annex 3 to Notice of Competition EPSO/AD/180-181-182/10.

[8] Point IV.1 of the Notice.

[9] Point IV.3 of the Notice.

[10] In respect of the complainant's argument that this eligibility condition was interpreted rigidly in his case because, in its opinion to the Ombudsman, EPSO wrote that the Selection Board found that his experience at company x had not been acquired in economic analysis, the Ombudsman points out that the decision on eligibility was taken by the Selection Board, not by EPSO, and that, in its correspondence with the complainant, the Selection Board referred to experience related to economic analysis, as set out in the Notice.

[11] See, for example, Cases T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 43, T-277/02 Pascall v Council [2004] ECR-SC I-A-137 and II-621, paragraph 57 and T-74/91 Rocco Tancredi v European Parliament [1992] ECR II-1645, paragraph 19.

[12] Article 19 of the European Code of Good Administrative Behaviour, available at: www.ombudsman.europa.eu/resources/code.faces

[13] Point 6.2 of the Guide to open competitions.

[14] Point 6.3 of the Guide to open competitions.