Strasbourg, 20 January 2005

Dear Mr X.,

On 25 October 2003, you lodged a complaint with the European Ombudsman against the European Commission, concerning the decision of a Commission's Delegation not to recommend your name for an advisory position with the Vice-Dean of the Y university, in the framework of an EU funded programme.

On 15 December 2003, I forwarded your complaint to the President of the Commission. I received the Commission's opinion on 11 March 2004, and forwarded it to you with an invitation to make observations. On 17 May 2004, you sent me your observations on the Commission's opinion. On 22 October 2004, you requested information on the status of the complaint.

At your request, your complaint has been dealt with confidentially.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

The complainant works as an independent educational consultant. Having placed his CV online with a recruitment agency, he received an invitation from the consulting firm Z, in Brussels, to apply for a position as Advisor to the Vice-Dean of a joint-venture university (Y university). The Y university project was funded by the EU. Z had signed a contract with the Commission for the development of this initiative, and acted therefore as the project's contractor. One of the main actions to be taken in the framework of the Y project was the development of an Executive MBA programme which was due to be launched in January 2004. There was a risk of delay to this initiative because a number of essential tasks had not been completed, in particular the establishment of a resource base and the necessary support areas.

The complainant had an initial interview which was carried out on the basis of the information provided in his CV. Staff from Z told him that the final decision on the appointment was to be made by the responsible EU Delegation, jointly with the local Management of the Y project. In order to reach the final outcome as soon as possible, Z decided to send only the CVs of two potential candidates for the EU Delegation’s approval.

In the complainant's view, Z was certain of his suitability for the position. He even signed a statement with Z agreeing to be available for the period between 1 October 2003 and 30 September 2007.

In view of the short period before the anticipated starting date, the complainant began to prepare for the job immediately. He pointed out that he had offered his current online programme and courseware databases to the Y management without any cost, so that the necessary modifications could be carried out rapidly. The work included an outline action plan drawn up after the interview.

The meeting with the EU Delegation and the Dean of Y was set for 25 September 2003, and consisted of a fifteen minute interview. Subsequently, Z informed him on 20 October 2003 that his application had not been retained, and explained that the panel was concerned about his lack of experience in working and residing abroad. The complainant noted that this criterion did not appear among the qualifications set out in the project's terms of reference.

In the complainant's view, had the panel reviewed his CV, it would have noted that most of his working life had been spent abroad, often away from home, in places such as India or Malaysia. The complainant was informally informed that the EU Delegation intended to re-interview a previously rejected candidate who did not appear to meet the selection criteria for the position.

The complainant put forward a number of considerations about the criteria which the candidate due to be selected was lacking. He expressed his disagreement with the EU Delegation's point of view.

The complainant stated that he was fully prepared to accept a reasonable decision, if the institution could justify it. He pointed out that no response to any of his inquiries had been received.

In view of the information submitted by the complainant, the Ombudsman asked the Commission to submit an opinion on the following allegations:

1. the justification for the recommendation adopted by the Commission's Delegation not to recruit the complainant, namely his alleged lack of working experience abroad, was not envisaged by the terms of reference of the project; and,

2. the Commission has not responded to the letters which the complainant had addressed to its Delegation requesting further clarification.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first described the factual background of the case. It explained that the complaint to the Ombudsman concerned the rejection of the complainant's application for a position with an EU funded programme. This programme aimed at supporting the economic reforms undertaken by a developing country by setting up national and regional centres for management education. One of the initiatives to be developed in the context of the programme was the establishment of a national scheme able to provide management and consultancy services for enterprises. During a five year period up to November 2007, the Commission agreed to give financial support to the project in the amount of EUR 14 million.

In the context of the Y programme, the European Commission signed a contract with a consortium headed by the consulting firm Z, which included the recruitment and provision of four long-term key experts and support staff.

As a part of the programme, a team of four experts hired by Z arrived in the recipient country on 20 November 2002. The Commission underlined that their contracts had been signed with Z, and therefore, they did not have any contractual link with the Commission.

The contract with the Deputy Team Leader and Advisor to the Vice Dean came to an end on 15 June 2003. In order to find a replacement for this position, Z held interviews with two candidates on 6 July 2003, one of them Mr XX. The Commission explained that, according to the service contract, Z was responsible for the recruitment of long and short-term experts in the Y programme and, in that capacity, all the information pertaining to the process was under its control. Since none of the two candidates appeared to meet the requirements of the terms of reference of the project, they were not retained.

As a result of the frequent changes in the expert team, the EU Delegation decided to take part in the selection of long-term experts, so that an ex ante quality control could be made.

On 25 September 2003, Z held additional interviews, which included the complainant. The candidates, however, did not appear to meet the requirements set out in the terms of reference. Since the project urgently needed an Advisor to the Vice Dean, the evaluation team decided to call Mr XX, one of the first two candidates excluded in the interview held on 6 July 2003, taking into consideration that he held a PhD and enjoyed relevant experience in a similar project. Having interviewed him again on 2 October 2003, the Y team and the EC Delegation jointly decided to offer him a contract as a short-term expert to fill the position of the Deputy Team Leader and Advisor to the Vice Dean. The Commission pointed out that he appeared to be the most suitable candidate. Z was nevertheless requested to continue its search for a candidate who could fill the position on a long-term basis.

The Commission explained that the complainant's qualifications did not meet the criteria set out in the programme's terms of reference. The institution noted that his qualifications did not include, among others: (i) the necessary PhD degree; (ii) 10 years experience in Human Resources Development; (iii) the minimum 5 years experience in the implementation of similar international projects of EU or other bilateral and/or multilateral development co-operation, preferably in Mediterranean countries; (iv) the necessary international experience or cross-cultural communication skills, (v) skills related to the "Project Cycle Management" (PCM) procedures of the EC; and (vi) proven ability to work within a multicultural team. The institution enclosed with its opinion an evaluation grid which assessed the qualifications for each one of the candidates.

The Commission also referred to a number of comments raised by the complainant in his complaint. It noted that its services never made any comment concerning the suitability of the complainant for the position, and that they could not be held responsible for the alleged statements made in that regard by Z.

As regards the complainant's interview, the institution explained that it took place on 25 September 2003 and that it lasted from 14h15 to 14h40. This period of time enabled the panel to ask all the necessary questions, after which the discussion naturally came to an end. Even though the other candidate for the position at the time was interviewed for ten minutes longer than the complainant, both candidates were unanimously rejected by the panel.

In reply to the complainant's allegation that he had received no reply to his inquiries, the Commission noted that he had only sent one email to its Delegation on 20 October 2003 to which he regrettably received no response. The institution apologised for not having replied to the complainant's correspondence, even though it pointed out that all requests related to the interview should have been addressed to Z, as the body responsible for the recruitment under the service contract.

The Commission stressed that the evaluation of the complainant and remaining candidates was done in accordance with the project's terms of reference. It therefore took the view that its services had acted properly, respected the rules and principles binding upon it, and that no instance of maladministration had thus occurred.

The complainant's observations

In his observations on the Commission’s opinion, the complainant restated the allegations made in his complaint. He considered that the Commission had not provided relevant or satisfactory answers to his complaint but, instead, its opinion raised further serious concerns about the fairness of the institution's personnel selection policies, and how they were applied to his particular case.

The complainant repeated that his interview for the position was too brief and largely irrelevant to allow him an opportunity to clarify any uncertainties regarding his qualifications.

He noted that even though he did not possess a PhD degree, his Master of Education postgraduate degree was more relevant to the position to be filled, since it can only be conferred in education-related fields, usually takes at least a year longer to obtain, and requires academic qualifications for institutional management. The complainant also made a number of comments regarding the PhD degree of Mr XX.

The complainant disputed the Commission's assertion that he lacked international experience. He stressed that, in addition to the experience, exceeding 10 years, in running his own business as an independent management consultant, he had a board-level industrial background which included human resource and personnel management experience. He further described in detail his business experience in recent years.

He also disagreed with the Commission's evaluation of his qualifications, in particular as regards openness to new challenges and practical experience in cross cultural negotiation and communication, cross-cultural communication skills, and understanding of gender issues. The complainant indicated that his qualifications and experienced were illustrated by the outcomes and actual work samples shown on his websites.

The complainant considered that Z did not play any role in the decision on the recruitment of the vacant position, but rather that the Commission was solely responsible for the outcome of the selection process.

THE DECISION

1 Reasoning of the Commission's recommendation regarding the complainant's recruitment

1.1 The complainant applied for a position as Advisor to the Vice-Dean of Y university in a developing country. The complainant alleges that the justification for the recommendation adopted by the Commission's Delegation in that country not to recruit the complainant, namely his alleged lack of working experience abroad, was not envisaged by the terms of reference of the project.

1.2 The Commission explains that, in the context of the Y programme, its services signed a contract with a consortium headed by the consulting firm Z which included the recruitment and provision of four long-term key experts. The institution argues that, according to the service contract, Z was responsible for the recruitment of long and short-term experts.

The institution also explains that the complainant's qualifications did not meet the criteria set out in the programme's terms of reference, and points out that his qualifications did not include, among others: (i) the necessary PhD degree; (ii) 10 years experience in Human Resources Development; (iii) the minimum 5 years experience in the implementation of similar international projects of EU or other bilateral and/or multilateral development co-operation, preferably in Mediterranean countries; (iv) the necessary international experience or cross-cultural communication skills, (v) skills related to the "Project Cycle Management" (PCM) procedures of the EC; and (vi) proven ability to work within a multicultural team.

1.3 As part of the evidence furnished in the course of his inquiry, the Ombudsman has carefully examined the legal basis for the Commission's action in this case, namely the contract signed between the Commission [the contracting authority] and the firm Z [the consultant], in particular its Annex I including the General Conditions for service contracts financed by the European Community, and its Annex II containing the Terms of Reference.

The Ombudsman notes that the subject of the contract, as defined in Article 1, was to provide technical assistance to the project. As set out in Article 15 of Annex I, where the contract entails technical assistance, it is the responsibility of the consultant to provide the necessary experts. However, Article 16.1 of Annex I states that:

"The personnel which the Consultant uses for the implementation of the contract shall be approved by the Contracting Authority. The terms of reference shall specify the minimum level of training qualifications and experience of the Consultant's personnel and, where appropriate, the specialisation required".

The Ombudsman also notes that the specific technical qualifications for the position of Advisor to the Vice-Dean are spelled out in point 3.2.B of Annex II. The criteria referred to include, among others, post-graduate experience in business administration, successful teaching, experience in human resource development, recognised international experience, communication and analytical skills, computer literacy, and understanding of the "project Cycle Management" procedures(1).

It appears therefore that the Commission had the legal authority to review the proposals made by the consultant for the recruitment of new personnel in order to ensure that the candidates met the criteria set out in Annex II of the contract.

1.4 As regards the assessment of the complainant's experience carried out by the Commission, the Ombudsman is mindful of the fact that this institution has been able to produce an evaluation grid in which the qualifications of all candidates were assessed on the basis of each one of the criteria set out in the terms of reference of the project, including international experience. Even though the complainant disagrees with many aspects of that evaluation, no information has been made available in the course of the inquiry which may lead the Ombudsman to believe that that assessment was vitiated by a manifest error or that there has been a misuse of powers.

The Ombudsman notes that the complainant has also referred in his complaint to the fact that the Commission chose to fill the vacancy with a candidate who had been initially rejected after the first round of interviews. In the Ombudsman's view, however, the Commission has thoroughly explained the reasons why, in the light of that candidate's professional experience, it came to the conclusion that he was the most suitable candidate.

On the basis of the information supplied by the complainant and the Commission during the inquiry, the Ombudsman has concluded that the inquiry has not revealed an instance of maladministration as regards this aspect of the case.

2 The Commission's alleged failure to reply to the complainant’s letters

2.1 The complainant alleges that the Commission did not respond to the letters which the complainant addressed to its Delegation requesting further clarification.

2.2 The Commission apologised for not having replied to the complainant's correspondence, even though it pointed out that all requests related to the interview should have been addressed to Transtec, as the body responsible for the recruitment under the service contract.

2.3 In accordance with the Commission's Code of Good Administrative Behaviour(2), a reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt of the letter from the responsible Commission department. In the present case, the Commission failed to act in accordance with its own rules. The Ombudsman notes, however, that the institution addressed the complainant's queries in its opinion to the Ombudsman, and that it has also apologised for not having replied before.

2.4 In these circumstances, the Ombudsman does not consider it necessary to deal further with this aspect of the case.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The list of criteria, as listed in point 3.2.B of Annex II, were as follows:

"• Post-graduate level qualification in business administration or other related fields and the PhD is an asset.
• 10 years experience in human resource development, thereof at least 5 years in consulting activities, managing a Business School or a Management Training Programme.
• Recent and successful teaching in graduate and post-graduate programmes.
• Recognised international experience, openness to new challenges and practical experiences in cross cultural negotiations and communication, knowledge of the country W is an asset.
• A successful experience (minimum 5 years) in the implementation of similar international projects of EU or other bilateral and/or multilateral development co-operation, preferably in Mediterranean countries.
• Experience in Human Resources Development for Private Sector enterprises in the area of business administration.
• Excellent communication and analytical skills, interpersonal and management skills.
• Highly developed oral and written communication skills in English [...].
• Computer literacy and good knowledge of project management software, data bases and information technology software is an asset.
• Full understanding of the "Project Cycle Management" procedures of the EC, analysis monitoring and supervision.
• Ability to work within an intercultural team, and within complex institutional and organisational settings.
• Full understanding of gender issues in the context of the programme."

(2) OJ L 308 of 8 December 2000, pp. 26-34.