Background to the complaint

1. The complainant is a native Spanish speaker, who took part in a selection procedure that was organised by the European Personnel Selection Office (EPSO) for recruiting EU staff in the field of financial rules applicable to the EU budget.[1]

2. Candidates had to designate a first language, in which they would take the initial pre-selection multiple choice tests, and a second language, in which they were to complete a ‘talent screener’ as part of their application. The choice of second language was limited to English, French, German and Italian.

3. Candidates that successfully passed the initial stage of the selection procedure and the subsequent ‘talent screener’ stage were invited to the tests of the ‘assessment centre’ stage,[2] which they had to take in the language they had designated as their second language.

4. The complainant successfully passed the initial stages and was invited to sit the assessment centre tests.

5. In January 2021, EPSO informed the complainant that his score in the assessment centre tests was not sufficient to place him on the list of successful candidates who would be eligible for recruitment by EU institutions and bodies (‘reserve list’).

6. The complainant made an administrative complaint to EPSO against the Selection Board’s decision not to place him on the reserve list.[3] In his administrative complaint, he set out several concerns about how EPSO organised and conducted the selection procedure. He also raised concerns about the language regime of the selection procedure. He argued that, by allowing candidates to sit the assessment centre in only the four designated languages, EPSO had discriminated against candidates, like himself, whose mother tongue was not one of those languages.

7. On 13 September 2021, EPSO rejected the administrative complaint. Regarding the language regime, EPSO considered that the complainant should have lodged a complaint against the notice of competition, which set out the language requirements, when it was published. EPSO stated that a candidate who is excluded from a selection procedure could still challenge the provisions in a notice of competition if they proved a close connection between those provisions and the challenged decision.^[4] It considered that the decision not to place him on the reserve list was not related to the language regime of the tests, and that he had failed to demonstrate a sufficiently close connection between the language regime and his performance in the assessment centre tests. EPSO thus rejected this aspect of his complaint.

8. Dissatisfied with EPSO’s reply, the complainant turned to the Ombudsman in September 2021.

9. On 24 September 2021, the complainant wrote to EPSO, asking how a recent judgment of the EU General Court,[5] annulling the notice of competition due to the language regime chosen, might impact his complaint. The complainant considered that he should be allowed to sit new assessment centre tests.

10. The Ombudsman opened an inquiry and asked EPSO to reply to the complainant’s letter of 24 September 2021.

11. EPSO replied to the complainant, rejecting his request. EPSO considered that the complainant had already exhausted his rights of appeal  and that the ruling of the Court did not alter his legal situation.

The Ombudsman's proposal for a solution

12. The Ombudsman noted that, before EPSO’s reply to the administrative complaint, the General Court had held the language regime of the selection procedure to be unlawful,[6] and found that EPSO’s reply to the administrative complaint regarding the language regime was not in line with a recent judgment of the General Court (‘the Correia de Paiva judgement’).[7]

13. The General Court found that limiting the choice of the second language of the selection procedure affects the ability of candidates to express themselves orally or in writing. The likelihood of getting better marks in the tests is higher if these tests are conducted in the candidate’s first language, or in a language in which they also have a high or a native speaker level.[8] Consequently, the court concluded that there was inevitably and necessarily a link between the language regime in the notice of competition and the applicant’s test results. 

14. The Ombudsman found that the same reasoning applied in the complainant’s case, and that the fact that he was obliged to sit the assessment centre tests in one of the four designated languages inevitably affected his results in the tests. The Ombudsman therefore disagreed with EPSO’s reasoning, in the reply to the administrative complaint, for rejecting the complainant’s claim regarding the language regime.

15. The Ombudsman proposed as a solution that EPSO reconsider the complainant’s administrative complaint. The Ombudsman suggested that, in doing so, EPSO take account of the recent EU case-law and take the necessary measures to address the negative impact that the language regime set out in the notice of competition had on the complainant’s status as a candidate.[9]

16. EPSO rejected the Ombudsman’s proposal for a solution. It contended that, under the Staff Regulations, it could not itself revise a decision taken in reply to an administrative complaint; such decisions could only be challenged before the Court of Justice. EPSO argued that, as the complainant had not appealed the decision on his administrative complaint before the Court, the decision had become final and could no longer be altered.^[10] EPSO also stated that, in accordance with EU case-law, an act adversely affecting a candidate may be subject to only one administrative complaint.^[11]

The Ombudsman's recommendation

17. The Ombudsman noted that, in its reply to the solution proposal, EPSO did not address the merits of the case, but merely rejected the proposal on the basis of procedural arguments. She recalled that the role of the European Ombudsman is precisely to act as an alternative redress mechanism for individuals impacted by a decision on an administrative complaint. As such, the fact that the complainant did not bring the matter before the EU Courts did not in any way prevent the complainant from turning to the Ombudsman. Moreover, the Ombudsman found that, while decisions of EU authorities, including replies to administrative complaints, may only be annulled by the EU Courts, the EU authority that issued the decision can still withdraw a decision that it subsequently considers unlawful.[12]

18. In addition, the Ombudsman confirmed her finding that, on substance, the position adopted by EPSO in its reply to the administrative complaint was wrong in law and constitutes maladministration. In particular, she found that it was not in line with the Correia de Paiva judgement, which had been confirmed by the Court following an appeal,[13] and with the decision of the Court to annul the notice of competition because of its language regime. The Ombudsman noted that both decisions had been taken by the Court prior to EPSO’s decision on the administrative complaint, and EPSO should have ensured that its decision on the administrative complaint was in line with the Court’s rulings. She therefore recommended that EPSO reconsider the complainant’s administrative complaint and accept his request to re-sit the tests at issue.[14] 

19. EPSO rejected the Ombudsman’s recommendation. In its reply, it clarified that it had no intention to call into question the Ombudsman’s role as a redress mechanism in such complaints. This was based on a misunderstanding of the Ombudsman’s proposal for a solution, which it understood applied to its reply to the complainant’s message of 24 September 2021 rather than to its reply to the administrative complaint.

20. Nevertheless, on substance, EPSO disagreed with the Ombudsman’s finding that its reply to the administrative complaint was wrong in law. In particular, it considered that, while a candidate may rely on the illegality of procedural elements in a notice of competition to challenge an individual decision, they must be able to demonstrate a direct connection between the reasoning of the contested individual decision and the illegal elements. In the case at hand, EPSO considered that there was no close connection between the decision not to place the complainant on the reserve list of the selection procedure, which did not refer to its language requirements, and the illegality of the notice of competition. Moreover, EPSO found that, in his administrative complaint, the complainant failed to claim the existence of such a link, nor did he demonstrate how the language regime of the selection procedure affected his performance in the assessment centre tests. EPSO argued that, on the contrary, in the Correia de Paiva judgement, the candidate provided concrete arguments as to why the applicable language regime adversely affected her performance in the assessment centre tests.[15]

The Ombudsman's assessment after the recommendation

21. The Ombudsman accepts EPSO’s explanation that its reply to the solution proposal was based on a misunderstanding of the scope of the solution proposal, and that it was not its intention to question the Ombudsman’s role.

22. Nevertheless, on the merits of the case, the Ombudsman maintains her view that the position adopted by EPSO in its reply to the administrative complaint was wrong in law.

23. In line with EU case-law, a candidate may rely on the illegality of elements of a notice of competition to challenge an individual decision only if they can demonstrate a close connection between the contested decision and the illegal provisions.[16]

24. In the case at hand, the Ombudsman notes that the complainant was not included on the reserve list of the selection procedure because he did not receive sufficiently high scores in his assessment centre tests, which were held in his second language. The assessment centre tests evaluated a number of competencies, including, in the general competency-based interview and the case study, the competency to ‘communicate’. The complainant made an administrative complaint precisely to challenge his results in the assessment centre tests, and thus, the decision not to include him on the reserve list. He argued, as a first point, that he had been discriminated against on the grounds of language.

25. Before EPSO adopted its decision on the complainant’s administrative complaint, the Court of Justice annulled the notice of competition on the basis of the irregularities of the selection procedure’s language regime.

26. The Ombudsman is of the opinion that, contrary to what EPSO claimed, the complainant did establish a close link between EPSO’s decision not to include him on the reserve list and the language regime for the tests, which was the basis for the Court to annul the notice of competition. In particular, in his administrative complaint, the complainant specifically argued that he had been discriminated against due to the language regime of the selection procedure. While, the complainant did not expressly state that the language regime had affected his results in the assessment centre tests, the purpose of his administrative complaint was precisely to contest his non-inclusion on the reserve list, and thus his results in such tests. By claiming that he had been discriminated against, the complainant essentially argued that, due to the language regime, he had been put at a disadvantage in relation to other candidates, which, as a consequence, affected his performance in the tests.

27. Moreover, while the Ombudsman notes that the complainant did not provide concrete elements to demonstrate how the language regime of the selection procedure had affected his results in the assessment centre tests, in the Correia de Paiva judgement, the Court held that the applicant’s knowledge of a language was inevitably and necessarily reflected in the test results. In particular, the assessment centre tests evaluate, among other things, the capacity of a candidate to ‘communicate’ in the language in question. Thus, limiting the choice of the second language affects the ability of candidates to express themselves orally or in writing and, consequently, the likelihood of getting better marks in the tests is higher if these tests are conducted in the candidate’s first language, or in a language in which they also have a high or a native speaker level.^[17]

28. On this basis, the Ombudsman is of the view that the complainant did not need to prove to EPSO how the language regime affected his results as the results obtained in these tests are inevitably and necessarily linked to the language regime. It was sufficient for the complainant to contest, in his administrative complaint, his non-inclusion on the reserve list based on the language regime of the selection procedure.  

29. In the Correia de Paiva judgment, the complainant provided concrete examples of how her results were affected by the language regime of the selection procedures by referring, in particular, to the limited choice of keyboard. However, the Court considered these as additional elements of proof rather than the basis for its decision.

30. In light of the above, the Ombudsman maintains her finding that the position adopted by EPSO in its reply to the administrative complaint constitutes maladministration. She therefore reiterates her recommendation that EPSO reconsider the complainant’s administrative complaint and allow him to re-sit the tests.

31. The Ombudsman is aware that EPSO has since launched a new ‘competition model’ and is currently reflecting on how to further improve its selection procedures. In particular, EPSO recently announced that it will start running its selection procedures in all 24 languages.[18] The Ombudsman will continue to monitor, in this context, how EPSO implements this in practice.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following finding:

EPSO’s position in its reply to the administrative complaint constitutes maladministration.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 28/02/2024

 

[1] Open competition EPSO/AD/374/19 - 4: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AC%3A2019%3A191A%3ATOC. The reserve list resulting from the selection procedure is valid until end June 2024, see https://epso.europa.eu/en/successful-candidates/reserve-list/374-4.

[2] Due to the outbreak of the COVID-19 pandemic, the group exercise tests was temporarily suspended and replaced by a situational competency-based interview. See addendum to the notice of competition: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:C2020/374A/01&from=NL

[3] See section 4.3 of the notice of competition and Article 90(2) of the EU Staff Regulations: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501

[4] Judgment of the Court of First Instance (Fifth Chamber) of 31 January 2006, Giulietti v Commission, case T-293/03, paragraph 41: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62003TJ0293;

[5] Judgment of the Court (Ninth Chamber) of 8 September 2021, Spain v Commission, case T-554/19: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245709&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1595857;

[6] Spain v Commission, case T-554/19, see footnote 5.

[7] Judgment of the General Court (First Chamber) of 9 June 2021, Ana Calhau Correia de Paiva v Commission, case T‑2021/17: https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-202/17&jur=T.

[8] Judgment of 2 July 2014, Da Cunha Almeida v Commission, case F‑5/13, paragraph 38: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62013FJ0005_SUM.

[9] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution available at: https://www.ombudsman.europa.eu/en/solution/en/172045

[10] Judgment of the Court (Grand Chamber) of 14 June 2016, European Commission v Peter McBride and Others, case C-361/14, paragraph 55: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-361/14%20P

[11] Judgment of the General Court (Fifth Chamber) of 11 December 2007, Jörn Sack v European Commission, case T-66/05,  paragraphs 36-37: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-66/05.

[12] Judgment of the General Court (Ninth Chamber) of 12 February 2020, ZF v European Commission, T-605/18, paragraph 148: https://curia.europa.eu/juris/liste.jsf?num=T-605/18&language=EN;

[13] Judgment of the Court (Second Chamber)  of 16 March 2023, Commission v Calhau Correia de Paiva, C-511/21 P: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-511/21%20P

[14] For further information on the Ombudsman’s recommendation, please refer to the full text available at: https://www.ombudsman.europa.eu/en/recommendation/en/171802

[15] Namely, the limitations on the languages in which she could take her written case study tests, and the related restrictions on the type of computer keyboard that she was allowed to use for the test in question.

[16] Giulietti v Commission, case T-293/03, paragraph 41, footnote 4; Judgment of the Court (Grand Chamber) of 8 September 2020, Commission Council v Carreras and others, joined cases C-119/19 P and C-126/19 P, paragraphs 66-70: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-119/19%20P.

[17] Da Cunha Almeida v Commission, case F-5/13, paragraph 38, see footnote 8.

[18] EPSO selection procedures – towards a full 24 language regime: https://eu-careers.europa.eu/en/news/epso-selection-procedures-towards-full-24-language-regime