The background to the own-initiative inquiry

1. Article 2(8) of the European Ombudsman's Statute reads as follows: "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned." Given that Article 2(8) constitutes a restriction on the fundamental right of all European citizens to turn to the Ombudsman (Article 43 of the Charter), it should not be given a wide interpretation that goes beyond the clear words of the legislator.

2. In line with established case-law[1], the Ombudsman takes the view that the above-mentioned condition in Article 90(1) and (2) of the Staff Regulations does not apply to candidates in recruitment competitions /selection procedures who submit a complaint to the Ombudsman concerning the conduct of competitions, including decisions by selection boards and selection panels. Article 2(8) of the Ombudsman's Statute expressly applies only in the case of a complaint “that concerns work relationships between the [EU] institutions and bodies and their officials and other servants”.

3. Against that background, the Ombudsman was concerned by the specific wording of the Call for expressions of interest EPSO/CAST/S/1/2011 for contract agents, in the field of translation for translators with Polish as a main language ("the Call"), which EPSO published in October 2011.[2]

4. The Ombudsman took note of the provisions of the Call concerning appeal procedures, namely, Chapter X of the Call ("Appeal procedures"). This Chapter reads as follows:

"[…] the following appeal procedures can be undertaken in the order mentioned in the table below: 1. Request a review […] time limit 10 days; 2. Lodge an administrative complaint under Article 90(2) of the Staff Regulations […] time limit 3 months […] After completion of step 2 above (step 1 is optional) you have the possibility to: 3.a) if your complaint is rejected explicitly or by silence, submit a judicial appeal under Article 270 TFEU and Article 91 of the Staff Regulations […] time limit 3 months OR 3.b) submit a complaint to the European Ombudsman […] time limit 2 years." (Emphasis added).

5. The Ombudsman took the view that the wording set out above of the Call was not in accordance with Article 2(8) of the Ombudsman's Statute as interpreted by him. It could thus be misleading. Therefore, he decided to open an own-initiative inquiry into the matter.

The subject matter of the inquiry

6. In his letter opening the own-initiative inquiry, the Ombudsman set out his interpretation of Article 2(8) of the Ombudsman's Statute (summarised in point 2 above) and suggested that EPSO could revise the above wording in future Calls for expressions of interest for contract agents.

The inquiry

7. On 11 April 2012, the Ombudsman asked EPSO for an opinion. On 27 July 2012, EPSO submitted its reply.

The Ombudsman's analysis and conclusions

A. Information on candidates' right to complain to the Ombudsman in Calls for expression of interest for contract agents

Arguments presented to the Ombudsman by EPSO

8. EPSO stated that, while it is true that candidates in open competitions may, under certain conditions, directly submit a judicial appeal to the Civil Service Tribunal without first lodging a complaint under Article 90(2) of the Staff Regulations, this is only possible in cases of appeals against decisions taken by the competition's selection board in relation to matters that lie within its exclusive remit. The reason for this is the selection boards' independence. The selection boards must conduct their proceedings exempt from any external interference or pressure in order to guarantee their independence. The selection boards' decisions "are therefore only subject to review by the EU courts". The administration, on the other hand, lacks the authority to amend, cancel or otherwise interfere with them.

9. However, in contract agent selection procedures, there is no selection board, and the comparative assessment of the candidates' aptitudes is carried out by the administration (EPSO). The decisions taken in such selection procedures cannot be contested directly by means of a judicial appeal. Lodging an administrative complaint under Article 90(2) of the Staff Regulations is mandatory, before a candidate can turn to the court.

10. As regards the Ombudsman's interpretation of Article 2(8) of his Statute, EPSO "appreciates that in principle it is not entirely impossible to interpret Article 2(8) of the Statute as suggested by the Ombudsman, inasmuch as the complaints lodged by candidates in open competitions do not concern an existing work relationship between the EU institutions and the complaining candidate."

11. However EPSO "cannot accept" the above interpretation, since "it is not in accordance with standing case-law, according to which competitions and CAST selections do relate to future work relationships with the institutions, and are therefore fully governed by the Staff Regulations and CEOS respectively." This has been "explicitly" clarified, inter alia, in the Stagakis case, where the Court recognised the standing of candidates to introduce administrative and judicial appeals under Articles 90 and 91 of the Staff Regulations on the grounds that they are claiming the status of official, "this in the context of a future work relationship" (Order in Case T-37/93 Stagakis v Commission). This approach has been consistently practised (Joined cases F-20/08, F-34/08 and F-75/08 Aparicio e.a. v Commission; Case F-2/07 Matos Martins v Commission).

12. According to EPSO, the wording of the Call in question is not based on an interpretation of Article 2(8) of the Ombudsman's Statute but rather on Article 2(4) of the Ombudsman's Statute, which provides that any complaint to the Ombudsman "must be preceded by the appropriate administrative approaches to the institutions and bodies concerned". According to established case-law, the purpose of the administrative complaint procedures is to enable and encourage an amicable settlement of differences between the complainant and the administration (Case 173/84 Rasmussen v Commission, paragraph 12; Case C-142/85 Schwiering v Court of Auditors, paragraph 11). In CAST procedures, the Article 90 complaint is an effective remedy allowing for such settlement. Therefore, EPSO is of the opinion that both the wording of Article 2(4) of the Ombudsman's Statute and its purpose (to ensure that the administration has expressed "its final view" before the Ombudsman commences his investigation) appear to suggest that candidates in contract agents' selection procedures should have exhausted the procedure set out in Article 90 of the Staff Regulations before involving the Ombudsman.

13. In light of the above, EPSO considers that the disputed provisions of the Calls for expression of interests should be maintained.

The Ombudsman's assessment

14. At the outset, the Ombudsman points out that only the EU courts may provide an authoritative interpretation of EU law. The Ombudsman is unaware of any interpretation by the EU courts of Articles 2(4) and 2(8) of the European Parliament's Decision on the regulations and general conditions governing the performance of the Ombudsman's duties (the European Ombudsman's Statute). The Ombudsman, himself, is therefore called on to provide the interpretation of the above-mentioned provisions governing his work. He is convinced that his interpretation allows for a reasonable, fair and effective implementation of his Statute. He points out that the former Court of First Instance held in the Lambert case: "[...] in the institution of the Ombudsman, the Treaty has given citizens of the Union, and more particularly officials and other servants of the Community, an alternative remedy to that of an action before the Community Court in order to protect their interests. That alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings."[3]

15. As rightly pointed out by EPSO, by requiring the complainants to approach the Institution concerned as regards the subject matter of their complaints before turning to the Ombudsman, Article 2(4) of the Ombudsman's Statute provides the Institution with an opportunity to (i) correct its behaviour and thus avoid a complaint to the Ombudsman, or, at least, (ii) explain itself before the Ombudsman's review starts. Pursuant to Article 2(4) of the Statute, the approaches to the Institution must be appropriate, that is, they must correspond to the applicable procedure and the circumstances of the case. While the Ombudsman does not deal with any grievances to which the Institution concerned has had no opportunity to answer, it is however for him to decide which prior administrative approaches are appropriate.

16. Article 2(8) of the Ombudsman's Statute, in turn, constitutes a lex specialis to the general Article 2(4) rule on prior administrative approaches because it concerns specific approaches to be made by members of the EU staff in cases concerning staff matters, namely, the administrative appeal procedure provided for in Article 90(2) of the Staff Regulations.

17. As to candidates who are not members of EU staff and who take part in open competitions for officials or open selection procedures for contract agents, the Ombudsman considers that, even if they have to address the Institution concerned regarding the subject matter of their complaint before submitting a complaint to the Ombudsman, they need not do so by way of the procedure set out in Article 90(2) of the Staff Regulations, which is not only cumbersome but also usually not known to them. Candidates, as EU citizens, should fully enjoy the right to submit a complaint to the Ombudsman set out in Article 43 of the EU Charter of Fundamental Rights. This right would be limited if unnecessary procedural requirements were imposed. As to candidates in open competitions/open selection procedures who are already members of the EU staff and who wish to submit a complaint to Ombudsman, they cannot be treated differently from other candidates, when their complaint to the Ombudsman does not relate to their work but to an external competition/selection procedure.

18. The objective of giving the Institution an opportunity to correct its behaviour or defend itself before the Ombudsman's review starts can be achieved where a candidate asks for a review of the decision on his/her participation in a competition/selection procedure, and the Appointing Authority (for example, EPSO) answers on behalf of the selection board or selection panel. If the review procedure is effective and the Administration (for example, EPSO) handles the request for review with diligence and care, and, as a result, is able to provide good reasons for the challenged decision, why would the decision of the review not be considered to be the "final view" of the Administration (for example, EPSO), which can be examined by the Ombudsman?

19. Contrary to what EPSO appears to suggest, the Ombudsman's interpretation of Article 2(8) and 2(4) of his Statute is in line with the relevant case-law. Indeed, in none of the judgments referred to by EPSO in the opinion, did the courts hold that candidates in open competitions/selection procedures who wish to challenge a decision of the selection board or selection panel before the court must first use the administrative appeal procedure provided for in Article 90(2) of the Staff Regulations.[4] The Ombudsman does not share EPSO's view that the distinction between a selection board in an open competition for officials and a selection panel in a selection procedure for contract agents is relevant for the purposes of his review.[5]

20. He maintains therefore that candidates in open competitions and selection procedures for contract staff who wish to complain against the decision of a selection board or selection panel may lodge an administrative appeal under Article 90(2) of the Staff Regulations before turning to the Ombudsman but they are not obliged to do so as a condition of admissibility of their complaint. Clearly, in the event that a candidate chooses to make use of the Article 90(2) Staff Regulations procedure before submitting a complaint to the Ombudsman, the Ombudsman will not start his review until that procedure ends.

21. Having clarified his interpretation of the Ombudsman's Statute, the Ombudsman is pleased to note that EPSO's Guide to open competitions published in the Official Journal on 7 September 2012[6] does not state that candidates must first make use of the administrative appeal procedure provided for in Article 90(2) of the Staff Regulations before submitting a complaint to the Ombudsman.[7]

22. The Ombudsman also examined the most recent Call for expressions of interest for contract staff. It was launched by the European Parliament in cooperation with EPSO and published on the EPSO website on 26 September 2012[8]. He is pleased to note that the section on "Complaints to the Ombudsman" under Chapter X "Review/Appeal Procedures" of this Call does not inform candidates that they must lodge an administrative complaint under Article 90(2) of the Staff Regulations before submitting a complaint to the European Ombudsman.

23. The Ombudsman also notes that the Call mentioned above reads as follows:

(a) "[…] a decision by a selection board may be challenged directly in the EU Civil Service Tribunal even if no complaint has first been lodged under Article 90(2) of the Staff Regulations"; and

(b) "You can submit an appeal to the EU Civil Service Tribunal […] under Article 270 of TFEU and Article 91 of the Staff Regulations. This option is available only in relation to decisions taken by the selection panel. In the case of administrative decisions denying admission to the selection procedure on the grounds that the application does not comply with the conditions for such admission set out in section B.I of the notice, you may appeal to the European Union Civil Service Tribunal only after having first lodged [an Article 90(2) of the Staff Regulations] complaint."

24. In light of the findings made above (points 21 and 22), the Ombudsman concludes that no further inquiries are justified into the subject matter of this own-initiative inquiry because EPSO appears to have followed the Ombudsman's original suggestion (point 6 above). The Ombudsman understands therefore that the wording of the Call which gave rise to his own-initiative inquiry was incidental. He regrets however that EPSO (i) took a defensive position in its reply to his own-initiative inquiry, and (ii) was not able to put its reply into the context of the most recent (and correct) information which it has itself provided to candidates.

B. Conclusions

The Ombudsman closes the present own-initiative inquiry with the following conclusion:

No further inquiries into this matter are justified.

EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 11 December 2012

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[1] Case T-294/03 Gibault v Commission [2005] ECR-SC-I-A-141 and II-635, among many others. Paragraph 22 of the judgment in case T-294/03 reads: "[…] The legal remedy available regarding decisions of a selection board normally consists of a direct application to the Community Court. […]"

[2] On 13 March 2012, the Ombudsman received a complaint concerning this selection procedure (complaint 553/2012/MHZ). The Ombudsman opened an inquiry into this complaint. He initiated an accelerated telephone procedure, which was successful. On 16 May 2012, the inquiry was closed, given that  EPSO had since provided the complainant with additional explanations as to why she was not admitted to the next stage of the competition.

[3] Case T-209/00 Lamberts v Ombudsman [2002] ECR II -2203, paragraph 65. In 2007, the Court of Justice used similar words in paragraph 44 of its judgment in Case C-167/06 Komninou and others v Commission [2007] ECR I-141.

[4] In the Stagakis case concerning an external open competition (Order in Case T-37/93 Stagakis v Parliament [1994] ECR-SC I-A-137 and II-451), the Court only referred to the candidates' entitlement to make an appeal under Article 90(2) procedure. In the Aparicio case concerning an open CAST selection procedure (Joint cases F-20/08, F-34/08 and F-75/08 Aparicio and others v Commission, judgement of 29 September 2009, not yet published), the applicants submitted "supplementary complaints". Although the Commission objected to the admissibility of the actions, the Court decided to examine the merits without ruling on the admissibility, apart from a plea on illegality, which was not the subject matter of the "supplementary complaints" (paragraphs 49 and 50). In the Matos Martins case (F-2/07 Matos Martins v Commission, judgement of 15 April 2010, not yet published), the applicant, who was a candidate in a selection procedure in a Call for expression of interest, submitted an Article 90 (2) complaint before bringing the action in the Court.

[5] In the judgments referred to by EPSO (in the Aparicio and Matos Martins cases), the EU Civil Service Tribunal appears to apply to selection panels the case-law relating to selection boards. For instance, in paragraph 78 of its judgment in the Aparicio case, the EU Civil Service Tribunal found: "although EPSO is not a selection board and the test concerned did not take the form of a competition, […] case-law [concerning irregularities or errors which have occurred in the course of an open competition] may be extended to it because EPSO is vested with a wide discretion in the organisation of selection tests."

[6] OJ 2012 C270 A p.1-15. On its website, EPSO provides a link to this Guide in all its announcements on new selection procedures and open competitions.

[7] "Like all citizens of the European Union, you can make a complaint to: European Ombudsman [address]. Note that that complaints made to the Ombudsman have no suspensive effect on the period laid down in Article 90(2) and 91 of the Staff Regulations for lodging complaints or for submitting appeals to the Civil Service Tribunal under Article 270 of the Treaty on the Functioning of the European Union. Note also that, under Article 2(4) of the General conditions governing the performance of the Ombudsman's duties, any complaint lodged with the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned."

[8] Call for expressions of interest for contract agents in the security and prevention sector published in the Official Journal on 26 September 2012. (OJ 2012 C 290 A p.1-6).