Strasbourg, 20 March 2006

Dear Dr. B.,

On 2 April 2005, you made a complaint to the European Ombudsman against the European Central Bank ("ECB") concerning the selection procedure for a position of Legal Counsel (Ref.: ECB/203/04/MLTSUN) published by the ECB. You mentioned in your complaint that you had not received a reply from the ECB to an e-mail that you had sent about the matter.

On 24 May 2005, my services contacted you by e-mail in order to check whether in the meanwhile you had received a reply from the ECB.

On 25 May 2005, you informed me that you had indeed received a reply from the ECB's Recruitment and Staff Development Service and you sent me a copy of that reply.

On 30 May 2005, I forwarded the complaint to the President of the ECB.

On 24 August 2005, the ECB sent an opinion, which I forwarded to you with an invitation to make observations.

On 30 September 2005, I received your observations.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, as follows:

In December 2004, the complainant applied for the post of Legal Counsel (Ref.: ECB/203/04/MLTSUN). The notice of vacancy was published by the ECB in the Maltese newspapers.

On 7 March 2005, the complainant received an e-mail from the ECB (Recruitment and Staff Development Division of the Directorate Human Resources) by which he was informed of the following: "Your application was given serious consideration by the Selection Committee on the basis of your experience and background. However (...) you have not been successful on this occasion."

The complainant was surprised that he had not received any other formal communication by conventional post. In his complaint to the Ombudsman, he expressed the view that such formal communication by conventional post should have been a practice of the European institutions. He also checked once again the qualifications required for the post announced and considered himself to have been more than qualified for the post in question (or at least for being invited for an interview), given that preference was accorded to applicants who were qualified in Maltese law. On 12 March 2005, he addressed the ECB by e-mail asking for further explanations about the decision not to shortlist his application.

On 14 March 2005, his e-mail was returned to him as undeliverable. He therefore re-sent his e-mail to all the addresses advertised on the ECB's website and received a confirmation that his message had been received.

Since he had not received a reply within the following two weeks, he sent a reminder on 2 April 2005 and, at the same time, he made a complaint to the Ombudsman.

On 5 April 2005, the complainant received a reply from the ECB's Recruitment and Staff Development service signed by the Senior Human Resources Expert in charge of recruitment for the Directorate General Legal Services. In that reply, the complainant was told that, although it was understandable that he would like to receive a more detailed explanation as to the reasons why he had not been called for an interview, it was not the practice of the ECB to provide such explanations to each candidate. The ECB stated that the Selection Committee considered in detail all applications for the post in question and had to make a decision based on the candidates' meeting the required qualifications but also taking into consideration the degree to which these conditions were fulfilled and, of course, by making a comparison among all expressions of interest. The ECB concluded that: "it was decided that other candidates met to a larger degree the requirements for the position and the function and, in the light of this, you were not invited for an interview".

The complainant was not satisfied with that answer and, on 25 May 2005, he informed the Ombudsman about the answer and confirmed his original allegations and claims, as submitted on 2 April 2005.

The complainant alleged that:

(i) the selection procedure was not transparent;

(ii) his application was not duly examined;

(iii) the information given to him by the ECB as regards the decision not to admit his candidature was unsatisfactory; and

(iv) the ECB failed to communicate with applicants in a proper way by doing so only electronically.

The complainant claimed that the ECB should (a) clarify its reasons for the decision not to admit his candidature and (b) explain to him why there was no way to communicate directly with the person who issued the refusal.

THE INQUIRY

The opinion of the ECB

The ECB's opinion was, in summary, as follows:

The ECB pointed out that, given the high number of applications received, it had set up an e-recruitment system that enabled candidates to view vacancy announcements and to apply on-line. Its rules of recruitment were laid out in the ECB's administrative circular 05/2004 of 18 May 2004, "Rules for recruitment", which was published on its website in its entirety. In addition, the summary of rules on its recruitment and selection procedure was published on the relevant ECB website. That website also contained an explicit invitation for the candidates to consult the ECB's administrative circular 05/2004 of 18 May 2004, "Rules for recruitment", by using the specified link.

The notice of vacancy in question was published on the ECB's website and also in the Maltese newspapers. The complainant filed his application using the ECB’s e-recruitment system through the ECB website as described above. The ECB concluded therefore that the complainant was in a position to become fully acquainted with the rules of the ECB's recruitment and selection procedure.

In light of the above, the ECB considered that the complainant's allegation of lack of transparency in the selection procedure was unfounded.

As regards the allegation that the complainant's application was not duly examined, the ECB stated that the Selection Committee examined 24 applications received by the closing date for registration. After this closing date, the Chairman of the Committee drew up the recruitment memorandum. That memorandum contained the findings of the Selection Committee and also provided an assessment of every single applicant, in accordance with the criteria laid down in the notice of vacancy.

The notice of vacancy explicitly stated that the successful candidate would be allocated to the ECB's Financial Law Division and should be prepared to act as "country rapporteur" for Malta's financial and banking legislation. In this context, the ECB explained in its opinion the duties of a "country rapporteur", which include inter alia: (i) monitoring and reporting on national legal developments in the European Monetary Union area; (ii) providing comparative analysis as regards legal files; (iii) preparing the ECB's opinions on draft national financial and banking legislation and reports on the effect of such opinions; (iv) being in charge of the verification and compliance exercises to ensure homogeneous and correct implementation of ECB legal acts; and (v) acting as the Directorate General Legal Services' interface with the Maltese National Central Bank and other relevant national bodies in the ECB's area of competence.

The notice of vacancy set out the following key criteria for the position in question: (i) advanced university degree in law/a professional legal qualification, preferably in relation to Maltese law; (ii) a postgraduate diploma, as well as a research and publications record would be an asset; (iii) excellent knowledge of financial law and a sound working knowledge of Community law; (iv) professional experience in financial or Community law would be an advantage.

In the ECB's view, as the selected candidate would act as a "country rapporteur" for Malta's financial and banking legislation, the above requirement concerning excellent knowledge of financial law was clearly an essential prerequisite. However, the Selection Committee did not find sufficient elements in the complainant's CV to indicate an excellent knowledge in the area of financial law. The Committee found that the complainant mentioned in his application that his current work mainly consisted of civil and commercial law and did not mention at all any expertise in financial law. Moreover, the complainant listed as his specific interests: transportation law, internet law, intellectual property law, international maritime law, competition law, public international law and environmental law. Therefore, given the complainant's background, the Committee's decision not to shortlist him was in compliance with the criteria of the notice of vacancy and was justified.

As regards the ECB's communication of its decision not to shortlist the complainant's application, the ECB stated that, in its e-mail of 7 March 2005, it informed the complainant that, "on the basis of his experience and background, he had not been retained for the position of Legal Counsel".

The ECB admitted that the complainant's reply to the above e-mail had been returned to him as undeliverable and therefore he had to send it once again, to the ECB Press Office and ECB Webmaster. The ECB apologised for the inconvenience caused in this regard.

The ECB noted, however, that the complainant's e-mail was finally re-directed to the ECB Recruitment and Staff Development Division, which replied to him on 5 April 2005. In that reply, the Recruitment and Staff Development Division stated (i) that a detailed review of all incoming applications took place; (ii) that a decision was taken on the basis of the fulfilment by candidates of the required qualifications; and (iii) that other candidates met, to a greater degree, the requirements for the position. The ECB considered therefore that its initial e-mail of 7 March and its further e-mail of 5 April 2005 clearly indicated that the complainant's experience and background were not sufficient for being shortlisted. Taking into consideration that the legal counsel's duties would encompass those of "country rapporteur" for Malta's financial and banking legislation, the decision not to shortlist the complainant "could only relate" to his lack of knowledge and experience in financial law.

As regards the e-communication method used to contact applicants, the ECB pointed out that Article 6(3) of its above-mentioned administrative circular stipulated that applicants were to be informed in writing of the outcome of their application. In the ECB's view however, there was no specific obligation imposed on the ECB to have recourse to conventional post, as long as the outcome of the selection procedure was put in writing. Moreover, the ECB recruitment system was an electronically-based platform, which made use of modern technology features such as e-mail and which thereby facilitated the processing of applications received by the ECB. Furthermore, it could not be denied that nowadays the use of internet and e-mail was widespread and commonly accepted by EU citizens and organisations. The ECB also noted that one of the advantages of the electronic system was that applicants were swiftly informed about the outcome of their application. Notwithstanding the above, when an applicant was unable to apply on-line, the application could also be sent by conventional post and thereafter further communication would be made by conventional post if no e-mail address was given.

In the case of the complainant, he applied electronically and duly filled out the section in the application form asking for e-mail contact details. Furthermore, his CV mentioned his e-mail contact details twice.

The ECB concluded that: (i) it conducted the selection procedure in accordance with the relevant rules, which are set out in detail on the same website the complainant used to make his application; (ii) the Selection Committee's decision not to admit the complainant was justified on the ground that he did not have the requisite qualifications, as listed in the notice of vacancy, for the position of Legal Counsel in Financial Law, entrusted with the function of "country rapporteur"; (iii) the two e-mails sent to the complainant on 7 March and 5 April 2005 clearly stated the reasons for the decision not to shortlist him by indicating the grounds mentioned in point (ii) above; and (iv) communication with the candidates by e-mail complied with the relevant rules of the ECB's procedure and "seems to have been implicitly acceptable to the candidate".

The complainant's observations

In his observations, the complainant stated that, although the procedures of selection and recruitment of the ECB seem to have been followed, it did not necessarily mean that such procedures were fair and just or transparent.

In the complainants' view, he satisfied the criteria specified in the notice of vacancy and he submitted the documents confirming this when he applied for the vacancy. He pointed out that (i) he was a qualified lawyer and, for over five years, he had been practising as a lawyer in Malta; (ii) he had a postgraduate degree in European and comparative law; (iii) he had a research record given that he was also a doctor of philosophy; and (iv) for five consecutive years, he had been working in a leading international audit and accountancy firm and in a local commercial bank.

The complainant also considered that the ECB, in its reasoning as to why he was not shortlisted, focused on secondary details which, in the complainant's view, were conveniently lifted from his CV, rather than on his actual professional qualifications.

The complainant further stated that the ECB, in its e-mail of 7 March 2005, did not explain on what grounds his application was not shortlisted and that the ECB's statement, in that e-mail, that he was not successful could not in itself be regarded as satisfactory.

As regards the ECB's e-mail of 5 April 2005, the complainant considered that the ECB should have developed its statement that other candidates met to a greater degree the requirements for the position. Moreover, he stated that given that most candidates were presumably Maltese lawyers, it was fair and just to know in what ways, and by what qualifications, other candidates met to greater degree the relevant requirements.

In relation to the ECB's comments concerning its electronic communication with candidates, the complainant stated that it was not correct to resort to such devices in order to cut down, minimise and possibly dishearten any future communication with the ECB. The complainant found it difficult to understand why he had to go through all the e-mail addresses on the ECB's website in order to get a reply.

Furthermore, the complainant pointed out that, on one hand, the ECB stated that e-mail communication made it possible to inform applicants swiftly but, on the other hand, the ECB took almost a month to reply to his e-mails.

THE DECISION

1 The selection procedure

1.1 The complainant alleged that (i) the selection procedure was not transparent; (ii) his application was not duly examined; and (iii) the information given to him by the ECB as regards the decision not to admit his candidature was unsatisfactory.

The complainant claimed (claim [a]) that the ECB should clarify its reasons for the decision not to admit his candidature.

1.2 In its opinion, the ECB stated, in summary, that the applicants were in a position to be acquainted with the rules of ECB's recruitment and the selection procedure, given that they were published on its website. The Selection Committee examined 24 applications received by the closing date for registration. The Chairman of the Committee subsequently drew up the recruitment memorandum, which contained the findings of the Selection Committee and also provided an assessment of every single applicant, in accordance with the criteria laid down in the notice of vacancy.

The ECB also stated, in summary, that its initial e-mail of 7 March and its further e-mail of 5 April 2005 clearly indicated that the complainant's experience and background were not sufficient for being shortlisted. Since the selected candidate would act as a "country rapporteur" for Malta's financial and banking legislation, the requirement concerning excellent knowledge of financial law was an essential prerequisite. However, the Selection Committee did not find sufficient elements in the complainant's CV to indicate an excellent knowledge in the area of financial law.

1.3 The Ombudsman considers that the complainant’s allegation (i) of lack of transparency and his allegation (iii) of lack of information both concern, in substance, the reasoning provided by the ECB for not shortlisting the complainant.

1.4 In this regard, the Ombudsman first notes that in its opinion on the present complaint, the ECB has explained that the Selection Committee did not find sufficient elements in the complainant's CV to indicate an excellent knowledge in the area of financial law and that the requirement in the notice of competition concerning excellent knowledge of financial law was an essential prerequisite.

1.5 The Ombudsman also notes that the ECB argues, with reference to its e-mails of 7 March and 5 April, that taking into consideration that the legal counsel's duties would encompass those of "country rapporteur" for Malta's financial and banking legislation, the decision not to shortlist the complainant "could only relate" to his lack of knowledge and experience in financial law. The Ombudsman takes the view that the two e-mails, whether considered separately or together, do not in fact contain the information, expressly or by necessary implication, that the Selection Committee did not find sufficient elements in the complainant's CV to indicate an excellent knowledge in the area of financial law and that the requirement in the notice of competition concerning excellent knowledge of financial law was an essential prerequisite.

1.6 The Ombudsman takes the view that the additional information provided by the ECB in its opinion on the present complaint is sufficient to enable the complainant to understand the reasons why the Selection Committee did not shortlist him and that the ECB has therefore taken appropriate action in response to the complainant’s allegations (i) and (iii) and his claim (a). The Ombudsman therefore considers that no further inquires into the allegations and claim are necessary.

1.7 The Ombudsman also considers, however, that it would be in the interests of good relations with citizens, as well as in conformity with principles of good administrative behaviour, for the ECB, in future, to inform each candidate who is excluded from a recruitment procedure because he or she does not satisfy the conditions laid down in a notice of vacancy of precisely which condition or conditions that candidate does not fulfil. A further remark to this effect will be made below.

1.8 In his observations, the complainant argues that the ECB should have developed its statement that other candidates met to a greater degree the requirements for the position. He stated that, given that most candidates were presumably Maltese lawyers, it was fair and just to know in what ways and by what qualifications, other candidates met to greater degree the relevant requirements. The Ombudsman points out that the information that the ECB could give to one candidate about other candidates is necessarily limited by the other candidates’ right of privacy. Moreover, since the ECB has clarified that the Selection Committee did not find sufficient elements in the complainant's CV to indicate an excellent knowledge in the area of financial law, the question of a comparative assessment of candidates’ merits does not appear to arise. The Ombudsman therefore considers that it is unnecessary to invite the ECB to comment on the complainant’s observations on this point.

1.9 As regards the complainant’s allegation (ii) that his application was not duly examined, the Ombudsman’s inquiry has not revealed any evidence that the Selection Committee failed to examine the application. To the contrary, the available evidence indicates that the Selection Committee did indeed examine the application and assessed it in terms of the criteria laid down in the notice of vacancy. The Ombudsman therefore finds no maladministration as regards this allegation.

1.10 In his observations, the complainant stated that in his view, he satisfied the criteria specified in the notice of vacancy and had submitted the documents confirming this when he applied for the vacancy. He pointed out that (i) he was a qualified lawyer and, for over five years, he had been practising as a lawyer in Malta; (ii) he had a postgraduate degree in European and comparative law; (iii) he had a research record given that he was also a doctor of philosophy; and (iv) for five consecutive years, he had been working in a leading international audit and accountancy firm and in a local commercial bank.

The Ombudsman notes the complainant’s views, but does not understand them to be a new allegation that the Selection Committee made an error of assessment. The Ombudsman considers it useful to point out in this regard that the case-law(1) of the Community courts confers a wide discretion on the appointing authority in assessing the candidates' qualifications, and thus in judging whether these qualifications are sufficient for being accepted.

2 Means of communication

2.1 The complainant alleged (iv) that the ECB failed to communicate with applicants in a proper way by doing so only electronically.

The complainant also claimed (b) that the ECB should explain to him why there was no way to communicate directly with the person who issued the refusal.

2.2 The ECB stated that, in order to be able to cope with the high volume of applications it received, the ECB set up an e-recruitment system that enabled candidates to view vacancy announcements and apply on-line. Consequently, communications with candidates were also made by e-mail.

The ECB also pointed out, in summary, that its rules of recruitment and selection procedure contain no specific obligation for it to have recourse to conventional post. The ECB recruitment system was an electronically-based platform, which made use of modern technology, such as e-mail, which facilitates the processing of applications and allows for swift information to applicants about the outcome of their application. Nowadays the use of internet and e-mail is widespread and commonly accepted by EU citizens and organisations. When an applicant was unable to apply on-line, the application could also be sent by conventional post and thereafter further communication would be made by conventional post if no e-mail address was given.

As regards the difficulty in communicating with the ECB, the ECB apologised for the fact that the complainant's e-mail of 12 March 2005 was returned to him as undeliverable, thereby obliging him to send it again.

2.3 The Ombudsman considers that the complainant’s allegation (iv) raises two separate issues: first, should e-mail messages sent to applicants routinely be confirmed by conventional post and, second, should applicants have the opportunity to communicate with the ECB by conventional rather than electronic means?

2.4 As regards the first issue, the Ombudsman considers that the principles of good administration require that applicants should be effectively informed in writing about the decisions concerning them. The Ombudsman considers that the ECB's explanation as regards the reasons for and advantages of its decision to use an electronically-based platform for recruitment is reasonable.

The Ombudsman notes that, in the present case, the complainant was inconvenienced because an e-mail that he had sent to the ECB was returned as undeliverable, so that he had to send it again. The Ombudsman welcomes the fact that the ECB apologised to the complainant in its opinion for this malfunction.

The Ombudsman does not consider that the fact that electronic message systems sometimes malfunction requires routine confirmation of e-mails messages by conventional post. The Ombudsman notes that it is well known that modern businesses and public administration rely extensively on communication by e-mail without subsequent confirmation by conventional post.

2.5 As regards the second aspect of the complainant’s allegation, the Ombudsman notes and welcomes the fact that the ECB gave applicants the possibility to choose to communicate by conventional post.

2.6 The Ombudsman therefore finds no maladministration as regards the complainant's allegation (iv).

2.7 As regards the complainant's claim (b), the Ombudsman understands that it refers to the fact that the e-mail sent by the ECB to the complainant on 7 March 2005 did not indicate the name of the official who sent the e-mail.

2.8 The Ombudsman notes that the ECB did not respond to this claim in its opinion. However, the Ombudsman also notes that the ECB's second e-mail to the complainant, sent on 5 April 2005 (three days after the complaint was submitted to the Ombudsman) did indicate the name and function of the person who sent it. Moreover, the complainant did not refer to claim (b) in his observations. In these circumstances, the Ombudsman considers that no further inquiries into this claim are necessary.

2.9 Finally, the Ombudsman notes that the complainant made a comment in his observations that, on one hand, the ECB stated that e-mail communication made it possible to inform applicants swiftly but, on the other hand, the ECB took almost a month to reply to his e-mails.

2.10 The Ombudsman does not understand the above comment to constitute a new allegation and therefore considers that it is unnecessary to prolong the present inquiry by inviting the ECB to take a stance on the complainant’s comment. The Ombudsman points out however that the complainant is free to submit a new complaint to the Ombudsman as regards this matter if considers it useful to do so.

3 Conclusion

For the reasons given in point 1.6 above, the Ombudsman considers that the ECB has taken appropriate action in response to the complainant’s allegations (i) and (iii) and his claim (a) and that no further inquiries into the allegations and claim are necessary;

The Ombudsman does not find any instance of maladministration as regards allegations (ii) and (iv).

For the reasons given in point 2.8, the Ombudsman also considers that no further inquiries are necessary as regards the complainant's claim (b).

The Ombudsman therefore closes the case.

FURTHER REMARK

The Ombudsman considers that it would be in the interests of good relations with citizens, as well as in conformity with principles of good administrative behaviour, for the ECB, in future, to inform each candidate who is excluded from a recruitment procedure because he or she does not satisfy the conditions laid down in a notice of vacancy of precisely which condition or conditions that candidate does not fulfil.

The Ombudsman would be grateful if the ECB could inform him in due course about the measures foreseen in this regard, so that the information can be taken into account in the Ombudsman's Annual Report 2006.

The President of the ECB will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See Case T-54/91 Antunes v European Parliament [1992] ECR II-1739, paragraph 39; Case T-249/01 Boixader Rivas v Parliament [2003] ECR II-749, paragraph 29, Case T-214/99 Carrasco Benitez v Commission [2000], ECR-II-01169, paragraph 70.