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Decision in case 1442/2018/PB on the way Eurojust conducted a recruitment procedure for a legal officer post
Decision
Case 1442/2018/PB - Opened on Friday | 07 September 2018 - Decision on Thursday | 07 November 2019 - Institution concerned European Union Agency for Criminal Justice Cooperation ( No maladministration found ) - Country Hungary
The case concerned a recruitment procedure that Eurojust organised to recruit a legal officer for its Legal Affairs Office. The complainant was a candidate whom Eurojust did not invite for an interview. He asked the Ombudsman to examine whether Eurojust had discriminated against him, misused its powers and/or wrongly assessed his application.
The Ombudsman found no indication of discrimination or abuse of power in the recruitment procedure. The Ombudsman’s inquiry also showed that the assessment of candidates had been done in an objective and consistent manner and in an effort to meet the real needs of its Legal Affairs Office. The Ombudsman, however, identified the following shortcoming: Eurojust’s assessment did not fully and visibly reflect the understanding that an applicant could reasonably have had of the selection criteria in the vacancy notice. As the Ombudsman trusts that Eurojust will address the issues identified for the future, she closed the case by making suggestions for improvement.
Background to the complaint
1. Eurojust published a vacancy notice to recruit a legal officer for its Legal Affairs Office. The vacancy notice set out requirements regarding education, skills and experience. It also set out what education, skills and experience would be advantageous.
2. A total of 244 persons applied for the post. Eurojust assessed the applications and invited six candidates for an interview.
3. Eurojust did not invite the complainant for an interview. This surprised the complainant as he had almost 18 years of national and EU experience in several fields of legal work and the post was at an entry level grade (AD6). He asked Eurojust to review the assessment, which it did. It confirmed its assessment, and therefore maintained its decision not to invite him for an interview.
4. Eurojust offered the post to one of the six candidates it had interviewed, but that person rejected the offer. In the end, Eurojust filled the post internally. Dissatisfied with the way in which Eurojust had carried out the recruitment procedure, the complainant turned to the Ombudsman in August 2018.
The inquiry
5. The Ombudsman decided to inquire into two main issues brought forward by the complainant: (a) Possible discrimination (based on gender, age and/or nationality) and misuse of powers; and (b) possible manifest error in the assessment of the complainant’s application (his work experience and knowledge).
6. In the course of the inquiry, the Ombudsman asked Eurojust to provide more detailed (non-confidential) information to the complainant about the recruitment procedure, as well as more detailed (confidential) information to the Ombudsman[1]. Eurojust provided this information, notably by agreeing to disclose previously undisclosed information to the complainant. Some information remained confidential primarily to protect personal data.
Alleged discrimination and misuse of powers
7. The Ombudsman has carefully reviewed the detailed information provided by Eurojust about the recruitment procedure. On this basis, she can conclude that there is no indication of discrimination related to either origin/nationality, age or gender. Nor does the information she reviewed suggest that there was any misuse of power. There are no facts to suggest any conflicts of interest or that the outcome of the recruitment procedure was pre-determined.
The assessment of the complainant’s application
8. The Ombudsman has carefully reviewed the complainant’s application and those of the persons whom Eurojust called for an interview.
9. On the basis of that review, the Ombudsman finds it entirely understandable that the complainant questioned Eurojust’s assessment of his application. In light of the main tasks and main requirements referred to in the vacancy notice, the complainant stands out as a highly qualified person, even to the extent of possibly being over-qualified[2]. Even if one were to recognise a generous margin of discretion in the assessment of candidates against the requirements set out in the vacancy notice, some of the marks that the complainant received stand out as inexplicable.
10. The source of the issue seems to be the following. On the basis of the Ombudsman’s review of the applications, it appears that Eurojust, when carrying out its assessment, focused on what the vacancy notice described as ‘advantageous’ criteria, and notably recent experience in applying the EU Staff Regulations and recent experience working in a legal team of an EU body. The actual importance given to such experience, which did not stand out as central in the vacancy notice, appears to have influenced the overall assessment to a disproportionate extent.
11. While there is nothing to suggest that Eurojust did not have valid reasons to consider the above-mentioned experience to be of particular relevance for the profile sought, the importance of such experience was clearly not reflected in the vacancy notice in a sufficiently transparent manner.
12. The information that Eurojust provided in this inquiry signalled to the Ombudsman a genuine willingness to carry out recruitment procedures in a professional manner[3]. The Ombudsman trusts that Eurojust will take related steps for improvement in light of its experience with this recruitment procedure. She therefore considers it unnecessary to issue a finding of maladministration in this case.
13. The Ombudsman moreover considers it appropriate to point out that it would have been within Eurojust’s powers of organisation to recast the recruitment procedure in such a way that it invited applications that matched its real needs in a more open and efficient way.
Conclusions
Based on the inquiry, the Ombudsman closes this case with the following findings:
There was no indication of discrimination or misuse of power in this case.
The Ombudsman identified shortcomings in the focus of Eurojust’s assessment, but considers that the circumstances make it unnecessary to issue a finding of maladministration in this case.
The complainant and Eurojust will be informed of this decision.
Suggestions for improvement
Vacancy notices should as far as possible provide a clear message about the ideal candidate. Potential candidates should be left with a genuine sense of what profile the EU body would most like to recruit.
With regard to experience, the amount of which can often vary considerably, it is not inappropriate to specify that certain fields of experience should be recent and/or main-experience. Moreover, it can be useful to make use of the interview stage to assess aspects that it might not be possible to assess fully from an applicant's written application, such as the candidate's motivation or reason for applying.
Emily O'Reilly
European Ombudsman
Strasbourg, 07/11/2019
[1] Information was, in part, requested in light of Article 1d(5) of the Staff Regulations, which provides for a reversal of the burden of proof in case of facts “from which it may be presumed that there has been direct or indirect discrimination”. See more generally Reversing the burden of proof: Practical dilemmas at the European and national level, European Commission (2014),
https://op.europa.eu/en/publication-detail/-/publication/a763ee82-b93c-4df9-ab8c-626a660c9da8/language-en
[2] The Ombudsman, who had access to all 244 applications, considers that this does not only apply to the complainant’s case.
[3] Relatedly, the Ombudsman notes that the European Court of Auditors in its relevant annual reports for 2017 and 2018 has not identified similar recruitment issues at Eurojust. https://www.eca.europa.eu/Lists/ECADocuments/AGENCIES_2017/AGENCIES_2017_EN.pdf
https://www.eca.europa.eu/Lists/ECADocuments/AGENCIES_2018/AGENCIES_2018_EN.pdf