Background to the complaint

1. The complainant took part in a selection procedure for recruiting EU civil servants, organised by the European Personnel Selection Office (EPSO)[1], which took place in 2021 and 2022.

2. The complainant was successful in the first stages of the selection procedure and, on 3 May 2022, EPSO sent an invitation letter to the complainant, inviting her to sit three oral tests (interviews) in the ‘assessment centre’ stage of the selection procedure. The three interviews were scheduled to take place remotely on different dates: the ‘general competency-based interview’ on 17 May 2022, the ‘field-related interview’ on 15 June 2022, and the ‘situational competency-based interview’ on 11 July 2022. As the complainant gave birth on 13 May 2022, she asked EPSO, on the same day, to reschedule her general competency-based interview.

3. On 7 June 2022, EPSO informed the complainant that it had rescheduled her general competency-based interview to 15 June 2022, the same date on which she was scheduled to take the field-related interview.

4. The complainant replied immediately, stating that, for both physical and mental reasons, she would not be able to prepare for and sit two tests that were scheduled on the same day. EPSO did not reply, and the complainant took both tests on the same day. The day after, the complainant contacted EPSO again, asking to re-sit the general competency-based interview.

5. In December 2022, EPSO informed the complainant that she had not been placed on the list of successful candidates.

6. Following this, the complainant asked EPSO to review its decision. She argued that, by requiring her to sit two exams on the same day, she had been discriminated against compared to other candidates and that, in any case, EPSO should not have rescheduled the tests until 40 days after she gave birth.

7. Following the review, EPSO informed the complainant that the selection board had confirmed its decision not to place her name on the list of successful candidates.

8. The complainant therefore lodged an administrative complaint, which EPSO rejected.

9. Dissatisfied with the outcome of her administrative complaint, the complainant turned to the Ombudsman on 5 February 2024.

The inquiry

10. The Ombudsman opened an inquiry into how EPSO dealt with the complainant’s administrative complaint about her request to reschedule her test.

11. In the course of the inquiry, the Ombudsman received EPSO’s reply and the complainant’s comments on EPSO’s reply.

Organising tests within 40 days from childbirth

12. The complainant referred to medical advice in her country of origin concerning ‘postpartum confinement’, according to which postpartum mothers should rest for 40 days following childbirth. She also referred to guidelines from the World Health Organization on maternity and postnatal care. She argued that, by organising both the general competency-based interview and field-related interview only 32 days after she had given birth, EPSO had acted at odds with the above advice.

13. EPSO argued that it had no obligation to suspend or delay the tests by more than one month after the complainant’s childbirth or maternity leave. By rescheduling her test 32 days after she had given birth, it had acted in line with the principles of the EU legislation governing maternity leave, which provides that “maternity leave [...] must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice”[2]. EPSO referred to a policy it has adopted setting out guidelines specifically for pregnant and postpartum women[3], and noted that the date initially proposed for the general competency-based interview fell within the two-week period of compulsory maternity leave following childbirth. EPSO therefore offered the complainant the possibility to change the date of the test to a date more than one month after her childbirth.

14. EPSO argued that its approach is also in line with EU case-law, which has found that women on maternity leave are not precluded from participating in a selection procedure, and that candidates may perform work-related activities during the weeks following the compulsory maternity leave of two weeks, provided for under EU law.[4]

15. The complainant countered that the EU case-law in question does not necessarily impose an obligation on postpartum mothers such as her to undertake any work-related activity, but that they can perform work-related activities during the weeks following the compulsory maternity leave.

Sitting two tests on the same day

16. The complainant argued that organising both the general competency-based interview and field-related interview on the same day was not in line with the invitation letter (addressed to all candidates), which explicitly stated that the “the general competency-based interview, the situational competency-based interview and the field-related interview will take place on different dates”. The complainant contended that this condition should also apply to those candidates that rescheduled tests.

17. The complainant added that, by obliging her to sit both tests on the same day, she was placed at a disadvantage compared to other candidates, and that this amounted to discrimination.

18. EPSO stated that the invitation letter did not apply to candidates that rescheduled one or more tests. It exclusively referred to the three test dates indicated in the letter, without prejudice to the choice of alternative dates in case of a possible future rescheduling. EPSO referred to the notice of competition, which states that candidates “will be invited to attend an assessment centre (online or in-person) over one or several days (...)”. The notice of competition, which is the legal basis for the selection procedure, thus allowed for the possibility to schedule multiple tests on the same day. The invitation letter does not have the same legal value as the notice of competition and it cannot override the provisions set out in the notice.

19. EPSO acknowledged that the complainant was the only candidate who had a test rescheduled on the same day as another test, but claimed that it could not avoid this due to the high number of candidates that had rescheduled a tests. However, EPSO contended that it nonetheless had respected its policy: it organised the tests more than one month after the complainant’s childbirth and there was a break of approximately three hours between the tests, which meant the complainant could rest and breastfeed in line with the European Commission’s internal rules on breastfeeding. Furthermore, EPSO argued that the fact the tests were organised remotely meant the complainant could rest at home.

20. Furthermore, EPSO stated that organising two tests on the same day is the current practice in selection procedures, and is in line with the applicable EU legislation and the principle of equal treatment. Although EPSO must ensure that all candidates are treated equally by providing fair and appropriate testing conditions, EPSO has no obligation to accommodate candidates’ personal preferences as regards test dates. According to EU case-law, a breach of the principle of equal treatment cannot be based on the differences that might exist between the specific factual circumstances of candidates. EPSO considers a candidate’s personal preferences as to the desired test dates to be a factual difference.

The Ombudsman’s assessment

21. As EPSO itself acknowledges in its policy on female candidates who are pregnant or have recently given birth, it needs to put in place measures to ensure that they are not put at a disadvantage so that they can participate in selection procedures on an equal basis with other candidates.

22. In this case, the complainant was originally scheduled to sit a test a few days after she had given birth. To ensure she was not at a disadvantage, EPSO decided to reschedule this test to a date more than one month after she had given birth. The Ombudsman considers this reasonable and to be in line with EPSO’s obligations under the applicable law and guidelines.

23. However, by rescheduling that test to the date on which the complainant was already scheduled to sit the field-related interview, the complainant was placed at a disadvantage compared to both candidates that sat the tests at the original dates and candidates that had rescheduled tests, as none of these candidates had to sit two tests in one day. As acknowledged by EPSO, the complainant was the only candidate in the selection procedure that had to sit two tests on the same day. Given that the complainant was already dealing with challenges of postpartum recovery and postnatal care, this compounded her disadvantage compared to other candidates. Moreover, EPSO could have been more flexible in rescheduling the test, especially since EPSO’s policy allows it to reschedule a test up to two months after the end of the originally scheduled test period[5].

24. Thus, the complainant’s arguments about not sitting both tests on the same day were clearly well founded because she was placed in a manifestly disadvantageous position compared to other candidates, and not due to a “personal preference” for a different date, as argued by EPSO. As a result of sitting the two tests on the same day, the complainant was deprived of the opportunity to participate in the assessment centre on equal terms with other candidates. The failure to address this disadvantage was therefore at odds with the principle of equal treatment, and amounts to maladministration.

25. The Ombudsman acknowledges the practical challenges of providing appropriate redress in this case, given that the selection procedure has been finalised. If it is not possible to reintegrate a candidate into the selection procedure in question, the EU Court has previously found in similar cases that redress could be provided by organising a separate, individual selection procedure for the complainant at a similar stage of a selection procedure as that where the problem occurred. If that is not possible, the Court suggested the EU body should enter into dialogue with the candidate with a view to agreeing on another fair solution[6].

26. Against this background, the Ombudsman considers that it would not be feasible to make a prescriptive corresponding recommendation. However, she will make a suggestion below to address her finding.

Conclusion

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

There was maladministration in how EPSO dealt with the request to reschedule the test.

The complainant and EPSO will be informed of this decision.

Suggestion

EPSO should enter into dialogue with the complainant with a view to finding an appropriate and fair solution.

Emily O'Reilly
European Ombudsman

Strasbourg, 04/02/2025

 

[1] EPSO/AD/391/21 - Experts in technical support to member states’ structural reforms and experts in the Schengen acquis (AD 7), available here: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2021:120A:FULL

[2] See article 8(2) of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31992L0085

[3] Policy for female candidates requesting reasonable accommodation(s) in staff selection procedures related to pregnancy and childbirth https://eu-careers.europa.eu/en/system/files?file=2023-09/EN-Reasonable%20accommodation%20policy%20for%20female%20candidates%20related%20to%20pregnancy%20and%20childbirth.pdf

[4] See F-86/12, Haupt-Lizer v Commission (paragraphs 49, 50 and 55): https://eur-lex.europa.eu/legal-content/FR/TXT/HTML/?uri=CELEX:62012FJ0086

[5] See page 3 of Policy for female candidates requesting reasonable accommodation(s) in staff selection procedures related to pregnancy and childbirth https://eu-careers.europa.eu/en/system/files?file=2023-09/EN-Reasonable%20accommodation%20policy%20for%20female%20candidates%20related%20to%20pregnancy%20and%20childbirth.pdf

[6] See T-156/03, Pérez-Díaz v Commission (paragraphs 50-53, 57, 62-64): https://curia.europa.eu/juris/document/document.jsf;jsessionid=80F856074AE21D24754035D3B7BA71E8?text=&docid=55154&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=24544938; and T-400/03, Bachotet v Commission (paragraphs 28-31, 35, 40-42): https://curia.europa.eu/juris/document/document.jsf?text=&docid=55155&pageIndex=0&doclang=fr&mode=lst&dir=&occ=first&part=1&cid=24546108