Decision of the European Ombudsman on complaint 2560/2005/ID against the European Personnel Selection Office

Strasbourg, 14 December 2007

Dear Mr A.,

On 26 July 2005, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO). Your complaint concerned the rejection of your candidature in the context of open competition EPSO/B/19/03 (OJ C52A/27.2.2004), for the establishment of a reserve list for Production Coordinators (OPOCE/EU Publications Office), on the ground that you did not have the requisite professional experience.

On 31 August 2005, I forwarded the complaint to the Director of EPSO. On 24 October 2005 I received an opinion from EPSO. I forwarded it to you with an invitation to make observations, which you sent on 9 December 2005.

On 22 May 2006, I wrote to the Director of EPSO, asking EPSO to submit (a) an opinion on certain of your observations; and b) certain documents concerning the case. I received EPSO's reply on 12 July 2006 and forwarded it to you with an invitation to make observations. No such observations appear to have been received by my services.

On 26 February 2007, I sent EPSO a proposal for a friendly solution to your complaint. A copy of my proposal was also sent to you on the same day. On 4 April 2007 EPSO replied to my proposal. On 16 May 2007 I forwarded a copy of EPSO's reply to you with an invitation to make observations. No observations appear to have been received by my services.

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

THE COMPLAINT

The complainant participated in Open Competition EPSO/B/19/03 for the establishment of a reserve list for administrative assistants (Maltese language) in the field of production coordination. By letter dated 23 May 2005, the Selection Board rejected the complainant's application on the grounds that he "ha[d] not furnished proof that would show that [he] ha[d] experience that correspond[ed] to the requirements of points A.II.2 and C.2 of the notice of competition. These points stipulate that, by the closing date for submission of applications (31 March 2004), candidates must have had at least 3 years' professional experience corresponding to the duties described under point A.I of the notice of the open competition since obtaining the upper-secondary education diploma qualifying them for admission to the competition."

By letter dated 10 June 2005, addressed to the Chairman of the Selection Board, the complainant expressed his disagreement with the Board's assessment, took the view that he had over three years experience relating to the duties of production coordinator, since he had been dealing with suppliers and working in purchasing, logistics, plus I.T./Press, and requested that the Board reconsider its evaluation at issue and to inform him of the outcome. In a letter dated 1 July 2005, the Chairman of the Selection Board informed the complainant that the Board had re-examined his application and confirmed its rejection, because "[t]he documents provided with [his] application d[id] not enable the Selection Board to conclude that the requisite professional experience in the chosen field, production coordination, ha[d] been gained" (emphasis in the original).

In his complaint to the Ombudsman, the complainant alleged, in particular, that EPSO had not satisfactorily explained why it considered that the complainant did not possess the requisite professional experience. The Ombudsman opened an inquiry into this allegation.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO made the following comments:

The complainant submitted an application for Open Competition EPSO/B/19/03, for the establishment of a reserve list for administrative assistants (Maltese language) in the fields of production coordination and proofreading for the production of publications. The complainant applied for field 1 "Production coordination". The "Production coordination" duties were specified in point A (I), field 1 of the competition notice.

The first stage of the competition required candidates to take three multiple-choice preselection tests (point B (1) of the competition notice). The complainant passed the preselection tests and was admitted to the second stage of the competition.

The second stage required that candidates submit a full application with documents supporting the information provided in their application. Then the Selection Board examined the candidates' full applications, with a view to establishing a list of candidates who fulfilled all the eligibility criteria specified in point A (II) of the competition notice and who, as such, could be admitted to the next stage of the competition. The complainant's full application was examined against the eligibility criteria specified in point A (II) of the competition notice.

The eligibility requirement specified in point A (II) (2) of the competition notice stipulates that, after obtaining their upper-secondary education diploma and before 31 March 2004, candidates must have gained professional experience of at least three years in the chosen field corresponding to the duties described in section A (I). In the complainant’s case, the pertinent field was production coordination.

On the basis of the information provided by the complainant in his full application, EPSO considered that the complainant did not fulfil the eligibility requirement laid down in point A (II) (2) of the competition notice, as he did not have the requisite professional experience in the duties described under point A (I) of the said notice. By letter of 23 May 2005, the Selection Board informed the complainant of its above assessment.

In determining the complainant’s professional experience, one of the documents provided by the complainant in support of his application was considered to be particularly relevant. The document is a personal declaration signed by the complainant which states:

"…Although I do have experience in the task [sic] you mention I must mention that the experience I have is not related directly to production co-ordination in a proofreading context (since I do not think such an occupation even exists in Malta)…" (emphasis added by EPSO in its opinion).

This document is an explicit declaration in which the complainant states that he lacks professional experience in the field of production coordination. Despite this explicit declaration, the complainant, by letter of 10 June 2005, requested review of the Selection Board's decision, claiming that his professional experience related to the production coordination duties described in the competition notice. However, the complainant did not attach any other documents to refute his earlier declaration.

After reviewing the complainant's application file, the Selection Board informed the complainant by letter of 1 July 2005 that "the documents provided with your application do not enable the Selection board to conclude that the requisite professional experience in the chosen field, production coordination, has been gained" (emphasis added by EPSO in its opinion). In the same letter, EPSO confirmed the decision not to admit the complainant to the next stage of the competition.

EPSO informed the complainant of the Selection Board's decisions in a timely manner and, following the complainant's request for information, provided an "adequately reasoned reply, considering all the documents placed at [the Selection Board's] disposal and, in particular, after regarding his personally signed declaration relating to his professional experience."

EPSO emphasised that, on the last page of the application form, the complainant signed the final declaration "I declare on my word of honour that the information given in his this application and the attached enclosure is true and complete"(EPSO's underlining).

Therefore the Selection Board had no reason to question the validity of the complainant's declaration relating to his lack of the requisite professional experience, especially since all the supporting documents contained in his file confirmed that he did not satisfy the professional experience requirement in the field selected in his application.

In view of previous case-law, the European Community Courts have consistently upheld the principle that a Selection Board is only obliged to consider the information and documents provided by candidates for the purposes of having their professional experience assessed according to the requirements laid down by the notice of competition. The onus is on candidates to ensure that they provide the Selection Board with all the information and documents necessary to enable it to check whether they satisfy the requirements of the competition notice. In Mr A.'s case, this was not done.

As regards the grounds for the Selection Board's decision, it should be noted that the reasons underlying the decision not to admit Mr A. to the competition were clearly set out in the letter informing him of that decision, as well as in the letter confirming that decision, and that this letter contained sufficient grounds to enable him to assess the validity of the decision.

The complainant's observations

The complainant’s observations may be summarised as follows:

The complainant emphasised that the phrase "not related directly to production co-ordination in a proofreading context" in the aforementioned personal declaration concerning his professional experience, was intended to mean that his professional experience was "not related directly… i.e. in name" (complainant's highlighting) to "production co-ordination in a proofreading context", but, however, that his professional experience did relate to the tasks involved in production coordination. The complainant also added that he does not believe that the post of production coordinator exists in Malta.

The complainant argued that EPSO should not interpret the phrase "production co-ordination" strictly in order to establish whether candidates held the requisite professional experience in this field, but in fact view the area of "production co-ordination" as composed of a variety of tasks and as such consider whether candidates had experience in these tasks.

The complainant added that if EPSO interprets the requirement of professional experience in production coordination as experience as a "production co-ordinator," i.e., experience in a named post, rather than experience in the tasks related to production coordination, then only candidates with professional experience as a "production co-ordinator" should have been admitted to the next stage of the competition.

The complainant requested that he be treated fairly compared to other candidates and stated that if EPSO can guarantee that only candidates with professional experience as a "production co-ordinator" were admitted to the next stage of the competition then he will accept this as a reasonable reply to his concerns.

However the complainant contended that if EPSO’s interpretation of professional experience in production coordination is in fact experience in the tasks related to production coordination and not experience in a named post of "production co-ordinator", then EPSO has evaluated his professional experience incorrectly. The complainant reiterated that his professional experience is related in substance to the tasks of production coordination described in the competition notice. He asserts that this is evident from his application, supporting documents and "information the referees would be able to provide if they [EPSO] get in touch with them."

Further inquiries

After careful consideration of the EPSO's opinion and the complainant's observations, it appeared that further inquiries were necessary.

On 22 May 2007 the Ombudsman asked EPSO to comment on the complainant's arguments that:

1. EPSO should not approach the phrase "production coordination" in a formalistic way but rather view it as a set of tasks and verify whether the candidates had the requisite professional experience in this field;

2. The phrase "not related directly" used in the complainant's declaration about his professional experience had the meaning that his experience was only "in name" not relevant to "production co-ordination in a proofreading context"; and that

3. As emerges from his application and the documents attached to it, and on the basis of "information the referees would be able to provide if [EPSO] gets in touch with them", his experience was, nevertheless, related in substance to the tasks of production co-ordination described in the Notice of Competition.

The Ombudsman also requested:

a) a copy of the initial letter by which the Selection Board informed the complainant of the rejection of his application;

b) a copy of the complainant's application and attached documents, referred to in the Selection Board's letter of 1 July 2005 to the complainant.

EPSO's reply

In reply to the Ombudsman's further inquiries, EPSO made the following comments:

Under Articles 5 and 6 of Annex III to its Staff Regulations and the case law in force, only the Selection Board for a competition can decide on the relevance of a candidate's professional experience or ask candidates to provide additional documents and clarifications.

The Selection Board examines the professional experience, supporting evidence of which candidates have to provide in documents attached to their application forms. Such evidence must be relevant to the functions described in the competition notice. The board's task is then to verify, by examining the supporting documents, whether the candidates have the professional experience required in the subject area of the competition. The terms of the competition notice relating to the present complaint explicitly stipulated that the supporting documents concerning professional experience had to clearly indicate the starting and finishing dates of the experience and the precise nature of the tasks carried out.

On the basis of this principle and after examining the supporting documents supplied by the candidate with his application, the Selection Board concluded that he did not fulfil one of the conditions in the competition notice, namely, three years' professional experience in technical and typographical productions of publications.

EPSO made specific reference to five supporting documents sent by the complainant with his application. EPSO went on to point out that only one of these documents could be taken into account as professional experience of the kind required in the competition notice, namely a certificate from the central printing works in Luxembourg, certifying that he worked as a proof-reader for seven-and-a-half months from 1 August 2003 - 15 March 2004.

The candidate stated in his application form, without supporting evidence, that he worked as a "secretary" at the European Parliament, from 21 April 2004. However, as the competition notice required candidates to have appropriate professional experience as of 31 March 2004, the Selection Board could not take into account any professional experience acquired after this date.

When verifying whether candidates meet the requirements for admission set out in the competition notice, the Selection Board can only take into account the information provided in their application form and the documentary evidence they submit in support of their applications. It is the candidates' responsibility to provide such information and documents, particularly if they have been asked to do so in the competition notice.

EPSO also made clear that the second paragraph of Article 2 to Annex III to the Staff Regulations states candidates may be required to provide additional information or documents. However, this provision simply gives the board the power (EPSO's underlining) to ask the candidate to provide additional information, should there be any doubt regarding any of the documents provided.

When examining the documents attached by the complainant to his application, the Selection Board was unable to conclude that the candidate had the required professional experience. Furthermore, the statement made by the complainant that the experience he has "is not related directly to production co-ordination in a proofreading context [...]", led to the Selection Board's unequivocal decision that his experience was not related to the area of production coordination.

The complainant was invited to submit comments on EPSO's reply, if he so wished. No comments were received from him.

THE OMBUDSMAN'S FRIENDLY SOLUTION PROPOSAL

After taking into account the arguments of the parties and the documents in the file of the case, after a reasoned analysis of the relevant issues, the Ombudsman reached the preliminary conclusion that the Selection Board had wrongly failed to provide the complainant with adequate, individualised reasons for the rejection of his application. Moreover, this shortcoming did not appear to have been remedied in the context of the inquiry. The Ombudsman, thus, proposed to EPSO a friendly solution to the complaint. More specifically, the Ombudsman suggested that EPSO could consider providing adequate explanations as to why the documents supplied by the complainant did not enable the Selection Board to conclude that the complainant had gained the professional experience required by the notice of competition.

EPSO replied in a positive way to the Ombudsman's proposal and provided explanations which, it considered, met the Ombudsman's suggestion. EPSO's reply was forwarded to the complainant, who did not make any observations on it.

THE DECISION

1 Allegation that EPSO had not satisfactorily explained why the complainant did not possess the requisite professional experience

1.1 The complainant participated in Open Competition EPSO/B/19/03 for the establishment of a reserve list for administrative assistants (Maltese language) in the field of production coordination. By letter dated 23 May 2005, EPSO's Selection Board rejected the complainant's application on the grounds that he "ha[d] not furnished proof that would show that [he] ha[d] experience that correspond[ed] to the requirements of points A.II.2 and C.2 of the notice of competition." By letter dated 10 June 2005, addressed to the Chairman of EPSO's Selection Board, the complainant expressed his disagreement with the Board's assessment, taking the view that he did in fact have over three years experience relating to the duties of production coordinator. According to the complainant, this was because he had been dealing with suppliers and working in purchasing, logistics, and the fields of I.T./Press. He therefore requested that the Board reconsider its evaluation at issue and inform him of the outcome. In a letter dated 1 July 2005, the Chairman of EPSO's Selection Board informed the complainant that the Board had re-examined his application and confirmed its rejection, because "[t]he documents provided with [his] application d[id] not enable the Selection Board to conclude that the requisite professional experience in the chosen field, production coordination, ha[d] been gained" (emphasis in the original).

In his complaint to the Ombudsman, the complainant alleged that EPSO had not satisfactorily explained why it considered that he did not possess the requisite professional experience. After inquiring into this allegation, the Ombudsman presented to EPSO a proposal for a friendly solution to the complaint. This proposal was based on the considerations presented below (points 1.2 - 1.6).

1.2 According to settled case law, the statement of reasons required by Article 190 of the EC Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question. This should be done in such a way as to enable the persons concerned to ascertain the reasons for the measure and to facilitate its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations(1).

More specifically, a decision by a Selection Board not to admit a candidate to a competition must state the conditions of the notice of competition which have not been fulfilled. If the competition involves a large number of candidates, the Selection Board may initially confine itself to stating the reasons for the refusal in a summary manner and informing candidates only of the criteria and the result of the selection. Nevertheless, the Selection Board must subsequently give an individual explanation to those candidates who ask for it(2).

1.3 In the present case, by letter dated 23 May 2005, the Selection Board informed the complainant that it had not accepted his application, because he "ha[d] not furnished proof that would show that [he] ha[d] experience that correspond[ed] to the requirements of points A.II.2 and C.2 of the notice of competition. These points stipulate that, by the closing date for submission of applications (31 March 2004), candidates must have had at least 3 years' professional experience corresponding to the duties described under point A.I of the notice of the open competition since obtaining the upper-secondary education diploma qualifying them for admission to the competition." By letter dated 10 June 2005, addressed to the Chairman of the Selection Board, the complainant (i) expressed his disagreement with the Board's assessment; (ii) took the view that he had over three years experience relating to the duties of production coordinator, since he had been dealing with suppliers and working in purchasing, logistics, plus I.T./Press; and (iii) requested that the Board reconsider its evaluation at issue and to inform him of the outcome. Hence, it should have been clear to the Selection Board that the complainant sought either to be admitted to the competition, or, at least, to obtain a decision, containing a sufficiently elaborate, individualised reasoning regarding his exclusion from the competition, so as to enable him to verify the soundness of this decision. In confirming its initial assessment, the Selection Board was thus required to explain clearly and in sufficient detail, why the complainant was wrong in considering that he fulfilled the requirements of the notice of competition pertaining to professional experience.

1.4 Nevertheless, the Selection Board failed to do that. B y letter of 1 July 2005, the Selection Board confirmed its decision not to admit the complainant to the next stage of the competition, stating that "the documents provided with your application do not enable the Selection board to conclude that the requisite professional experience in the chosen field, production coordination, has been gained". Hence, the Selection Board, in essence, simply repeated the conclusion expressed in its previous letter of 23 May 2005, without explaining why the documents provided by the complainant did not enable it to find that the complainant had gained the professional experience in production coordination required by the notice of competition. Under these circumstances, the Selection Board appeared to have failed to provide the complainant with adequate, individualosed reasons for the rejection of his application(3). This was an instance of maladministration.

1.5 It must further be examined as to whether EPSO provided an adequate, individualised reasoning in the context of the present inquiry. EPSO has stated that (a) the documents supporting the complainant's application did not in any way demonstrate that he had the required experience relating to production coordination; and (b) the Selection Board concluded that the complainant did not have the requisite three years of professional experience in technical and typographical production of publications and that his experience was not related to the area of production coordination. For the reason indicated in point 3 above, these statements cannot be considered as remedying the failure to provide adequate, individualised explanations for the rejection of the complainant's application.

EPSO also said in its opinion on the complaint that, i n determining the complainant’s professional experience, one of the documents provided by the complainant in support of his application was considered to be particularly relevant. The document was a personal declaration signed by the complainant in which he stated:

"…Although I do have experience in the task you mention I must mention that the experience I have is not related directly to production co-ordination in a proofreading context (since I do not think such an occupation even exists in Malta)…"

EPSO stressed that this document is an explicit declaration in which the complainant states that he lacks professional experience in the field of production coordination. The Selection Board rejected the complainant's application, after taking into consideration the supporting documents submitted by him, including the above personal declaration.

However, the above document submitted by the complainant did not state that he did not have the professional experience required by the notice of competition, or that he lacked professional experience in the field of production coordination. The document stated that the complainant did "have professional experience in the task" mentioned (in the notice of competition), but his experience was not "related directly to production co-ordination in a proofreading context", a phrase which is not found in the part of the notice of competition concerning the required professional experience(4). In this regard, it must also be noted that, as EPSO has indicated, the Selection Board did not rely exclusively on this declaration made by the complainant in order to reject his application, but also on its examination (against the requirements of the competition notice) of the other documents submitted by the complainant in relation to his professional experience.

Nevertheless, as pointed out, EPSO has not given sufficiently specific explanations as to why these other documents provided by the complainant did not enable the Selection Board to find that the complainant had gained the professional experience in production coordination required by the notice of competition.

1.6 Under these circumstances, the Ombudsman's provisional conclusion was that the instance of maladministration referred to in point 1.4 above did not appear to have been remedied in the context of his inquiry. He, thus, made a friendly solution proposal, in which he suggested that EPSO could consider providing adequate explanations as to why the documents supplied by the complainant did not enable the Selection Board to conclude that the complainant had gained the professional experience required by the notice of competition.

1.7 On 4 April 2007 EPSO replied to the Ombudsman's friendly proposal. EPSO pointed out that, when replying to the Ombudsman on 26 June 2006, it attached a copy of all supporting documentation submitted by the candidate at the time of application, on the basis of which the Board decided that he did not fulfil the conditions relating to professional experience. The only supporting document which could be accepted as relevant professional experience for the purposes of the competition was the document from the central printing works in Luxembourg.

With regard to the candidate's experience in the company ETC employment and training corporation (Malta), EPSO noted that a number of professional activities were listed which are not related to the nature of the functions listed in the competition notice: "fast food crew member", "pupil", "stores clerk", "clerk", "purchasing executive" and "accounts clerk". As regards the certificate from the Malta Standards Authority, EPSO observed that the candidate was employed as an "Accounts Clerk", and no reference was made to the production of publications. Additionally, EPSO remarked that the certificate from "Hôtel Milano Due" in Malta mentions the candidate's efficiency without giving any further information on the nature of his functions. This was also true of the certificate from the company "ESI limited" in Malta, which mentioned the candidate's diligence and capacity for work without giving any further information regarding the nature of his duties.

As a result, since the majority of the complainant's professional experience was not relevant to the nature of duties mentioned in the competition notice, and since the candidate's only relevant professional experience lasted seven-and-a-half months, the Selection Board could not admit Mr A. to the competition.

EPSO considered this explanation to fulfil the request made by the Ombudsman for a friendly solution.

EPSO's reply was forwarded to the complainant with an invitation to make observations on it. No such observations appear to have been received by the Ombudsman.

1.8 The Ombudsman considers that EPSO accepted his friendly solution proposal and provided the explanations suggested in it. Moreover, the adequacy of these explanations was not contested by the complainant, who did not make any observations on EPSO's above reply to the friendly solution proposal. The Ombudsman, therefore, considers that EPSO has taken appropriate action in response to his friendly solution proposal.

2 Conclusion

Following EPSO's positive reply to his relevant friendly solution proposal, the Ombudsman considers that EPSO has taken appropriate action in response to the complainant's allegation. The Ombudsman, therefore, closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See, e.g., Case C-266/05 P, Sison v. Council (not yet reported in the ECR), paragraph 80, citing Case C-367/95 P, Commission v. Sytraval and Brink's France [1998] ECR I-1719, paragraph 63.

(2) See Case T-55/91, Fascilla v. Parliament [1992] ECR II-1757, paragraphs 32, 33, 35. Cf. Case 225/87, Belardinelli v. Court of Justice [1989] 2353, paragraph 7.

(3) Cf., e.g., Case T-55/91, Fascilla v. Parliament [1992] ECR II-1757, paragraphs 34-35.

(4) Point A.II.2 of notice of competition EPSO/B/19/03 provides: "After obtaining their upper-secondary education diploma and before 31 March 2004, candidates must have gained professional experience of at least three years in the chosen field corresponding to the duties described in section A(I)." (emphasis in the original)

Point A.I of the same competition notice provides:

"DUTIES

Field 1: production coordination

Working under supervision, production coordinators will be expected to coordinate the process of production of publications, in paper or electronic form, on the basis of a manuscript supplied by an author. This involves:

— drawing up estimates on the basis of existing contracts,
— preparing production schedules in relation to contractual deadlines,
— coordinating and monitoring the administrative and technical work related to the production of publications,
— preparing publications in terms of composition and layout,
— liaising between originating departments and proofreaders with a view to ensuring consistency both within individual documents and between their various language versions,
— verifying the proofs at all stages,
— delivering the final proof for production and/or dissemination,
— ensuring coordination with dissemination operations,
— carrying out the technical verification of invoices,
— drawing up technical specifications and carrying out technical assessments of invitations to tender for publications."