Strasbourg, 28 March 2008

Dear Mr X.,

On 15 July 2005, you submitted a complaint to the European Ombudsman against the European Economic and Social Committee ("EESC") concerning your application for the post of contractual agent in the Joint Translation Service of the Committee of the Regions of the European Union ("COR") and of the EESC.

On 12 September 2005, I forwarded the complaint to the EESC's President.

Given that several aspects of your complaint were also directed at the COR, I also opened an inquiry in relation to the COR (which my Secretariat registered under the reference 2472/2005/MF).

The EESC sent me its opinion in English on 30 November 2005, and the Latvian translation of it on 7 December 2005.

On 20 December 2005, I forwarded the EESC's opinion to you with an invitation to make observations, which you sent on 20 January 2006.

On 9 February 2007, I asked the President of the EESC for further information in relation to your complaint. I asked the EESC to reply to me by 15 March 2007.

Having received no reply by that date, my services contacted the EESC' s services by telephone on 12 April 2007 and were informed that the EESC would send soon its reply.

On 16 March 2007, the EESC sent its reply in English to my request for further information. The EESC sent the Latvian version of its reply on 20 March 2007.

On 25 April 2007, I forwarded to you the EESC's reply, with an invitation to make observations.

On 2 May 2007, you sent a further e-mail to my services, to which they replied on 3 May 2007.

On 4 June 2007, you sent me your observations on the EESC's further opinion.

On 28 June 2007, you sent a further e-mail to my services, to which they replied on 2 July 2007.

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 were, in summary, as follows:

In February 2004, a joint selection procedure was organised by the Committee of Regions ("COR") and the European Economic and Social Committee ("EESC") for the recruitment of four secretarial posts, as contractual agents, at the Joint Latvian Translation Service. This joint translation service is shared between the COR and the EESC and is staffed by officials of both Committees.

The complainant, a Latvian citizen, applied for the post of assistant/secretary (of B/C grades) in the Joint Latvian Translation Service.

On 9 March 2004, following the inclusion of his name in an EPSO reserve list for the recruitment of staff from the "new" Member States, the complainant was invited to an interview by the COR and the EESC.

In a letter of 29 March 2004, the complainant was informed by the Director of Directorate Administration of the COR that he had passed the selection procedure and that his name had been put on the reserve list. The complainant stated that he was further informed that he would be contacted in order to be offered a contract of employment.

In a letter dated 25 October 2004 from the EESC, the complainant was invited to undergo a medical examination.

On the occasion of a telephone conversation of 26 October 2004, the complainant stated that he was informed by the person in charge of the selection procedure at the EESC that he was "offered" the post of assistant/secretary. He also stated that he was further advised to resign rapidly from his current post and to undergo a medical examination.

On 27 October 2004, the EESC informed the complainant that "the internal rules had been modified" and that successful candidates of an EPSO open competition whose names were not on the shortlist of five candidates following the selection procedure for the recruitment of assistants/secretaries to which the complainant had taken part, were also allowed to participate in this procedure. The complainant was further informed that a person whose name had been put on a reserve list had applied for the position and had been offered it. However, in the meantime, this person had refused the offer. The complainant stated that he was offered the contract instead.

In mid-November 2004, the complainant met the Head of Unit of the Joint Latvian Translation Service who informed him that the position had in fact been awarded to a person who had been a trainee at the Latvian Joint Translation Unit.

In March 2005, the complainant met the Secretary-General of the COR in order to discuss his situation. He asked him to inquire into his case.

On 21 April 2005, the Secretary-General of the COR informed the complainant that, following the selection procedure, the COR and the EESC had shortlisted candidates for the respective vacancies. Given that the two positions under the control of the COR had been filled, the Secretary-General was not able to offer the complainant any position at the time.

The Secretary-General of the COR further informed the complainant that, while he had been shortlisted for one of the positions at the EESC, these positions were finally offered to other persons. He pointed out that this decision came within the EESC's responsibility.

In May 2005, the complainant contacted the Head of the Resources and Financial Unit of the EESC who promised him that he would clarify his situation. In June 2005, in the absence of any information, the complainant telephoned the Head of the Unit, who stated that one of the positions had been offered to a trainee.

In his complaint to the European Ombudsman, the complainant alleged that there had been an abuse of power and a lack of transparency in the selection procedure for the post of assistant/secretary in the Joint Translation Service of the COR and the EESC. In order to support his allegation, the complainant pointed out that the trainee who had been offered the post had not undergone a formal interview and her name was not on the shortlist of candidates. He argued that the trainee had been offered the position following the unilateral decision of the Head of Unit of the Joint Latvian Translation Service.

The complainant further alleged that there had been procedural irregularities in the selection procedure.

The complainant claimed that he should receive compensation or receive a proposal of an equivalent position. He further claimed that persons in charge of the recruitment at the COR and the EESC should put an end to the irregularities in the recruitment procedure and should be reprimanded.

THE INQUIRY

The EESC's opinion

The EESC's opinion on the complaint was, in summary, as follows:

Background

Following the enlargement of the EU in 2004, the Joint Latvian Translation Service of the EESC and the COR was assigned a total of four assistant/secretary posts, that is, two posts at the disposal of the EESC and two posts at the disposal of the COR. The EESC and the COR then organised a selection procedure in order to recruit four assistants/secretaries as "contractual agents" in the Joint Latvian Translation Service(1). This joint translation service is shared between the COR and the EESC and is staffed by officials of both Committees.

The complainant applied for the post of assistant/secretary. By letter of 29 March 2004, the complainant was informed by the Director for Administration of the COR that his name had been included on the shortlist, and that he would be contacted very soon by the COR in order to be offered a contract.

In October 2004, the Head of the Joint Latvian Translation Service asked the Recruitment Unit to "launch" the recruitment of the complainant, who was, by that time, the only person still on the shortlist.

On 20 October 2004, the EESC realised that, contrary to what had been the situation thus far, a possibility had arisen to recruit a Latvian candidate (candidate "D")(2) from the EPSO reserve list corresponding to Open Competition EPSO/C/6/03.

The Recruitment Unit thus invited candidate D to attend two interviews for two different posts (one with the Head of the Joint Latvian Translation Service and the other one with the Director for Consultative Work A). The complainant was informed accordingly on the same day. He was further informed that, if a decision were to be taken to recruit candidate D to the Joint Latvian Translation Service, the latter would be recruited as a matter of priority. However, given the uncertainty about the outcome of the recruitment procedure of candidate D, and in order not to delay the recruitment procedure, the complainant was invited, by letter of 25 October 2004, to undergo a medical examination.

The two interviews with candidate D took place on 29 October 2004. Both Services, namely, the Joint Latvian Translation Service and the Directorate for Consultative Work A, expressed the wish to recruit candidate D. The Recruitment Unit decided, during the first half of November 2004, that candidate D would be recruited to the Directorate for Consultative Work A.

The EESC stated that, given that candidate D was no longer available for recruitment by the Joint Latvian Translation Service, on 17 November 2004, the Head of Unit of the Joint Latvian Translation Service initiated a request to recruit, to the remaining position of assistant/secretary, a person who had been working as a trainee in the Joint Latvian Translation Service since 16 September 2004. This person had been chosen through an independent selection procedure by the Traineeship Office. The formal offer of recruitment to this person was signed by the Secretary-General of the EESC on 23 December 2004.

The substance of the complainant's allegations and claims

The EESC stated that it had never made an "offer of employment" to the complainant. The letter of 29 March 2004 sent by the Director for Administration of the COR to the complainant might have given the impression that it would only be a question of time before he would receive an offer. This impression may, from the outset, have created a false hope on the part of the complainant. After it had been decided that candidate D would be recruited to a service other than the Joint Latvian Translation Service, the EESC offered the position, as a temporary agent, to a person who had already shown his competence and capacity for integration. This person had worked as a trainee in the Joint Latvian Translation Service since 16 September 2004.

The EESC further stated that it was not legally bound by the results of the selection procedure for Latvian assistants. Recruitment to the EESC was possible when there was an adequate budget and the qualifications of a candidate corresponded to the job. The recruitment procedure for the complainant was ended because the EESC had an unexpected possibility to recruit a candidate who had been successful in an EPSO selection procedure, that is, candidate D.

The EESC stated that, after the complainant was informed, on 20 October 2004, that a possibility had arisen to recruit from an EPSO reserve list and that such a recruitment would be given priority treatment, he reacted very negatively. He subsequently sent a series of inquisitorial e-mails and made telephone calls to the Head of the Joint Latvian Translation Service. He also tried to put pressure on the Head of Service at least in one case through a "high level EU personality".

The complainant's observations

In his reply, the complainant maintained his allegations and made, in summary, the following further comments.

Given that, in its opinion, the EESC stated that it had asked the Recruitment Unit to launch the recruitment of the complainant, the EESC's argument that he had never received an offer of employment was false.

The complainant stated that he had never been interviewed by the Head of the Joint Latvian Translation Service with an eye to assessing his skills and comparing them with those of the former trainee who had been selected for the position.

The EESC's statement concerning the complainant's telephone calls did not correspond to reality. The complainant asked the Head of the Joint Latvian Translation Service a number of questions by telephone. However, given that he did not receive any answer, he sent the Head of Service a further e-mail. In the complainant's view, the EESC's statement that he had tried to put pressure on the Head of the Joint Latvian Translation Service was untrue.

Despite the fact that, at the time of EU enlargement, funding was allocated to both the COR and the EESC, there had been a long delay in recruiting staff. Although the selection procedure began in February 2004, the decision to fill the last vacancy was only signed by the Secretary-General on 23 December 2004.

Further inquiries
The request for information addressed to the EESC

After careful consideration of the EESC's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore asked the EESC to provide him with information on the following points:

"1) In his observations, the complainant stated that that there had been a long delay in the recruitment procedure. In his complaint, the complainant had alleged that there had been procedural irregularities. He made it clear that this allegation extends to the time it took the EESC to reach its decision."

The EESC was requested to comment on this issue.

"2) The EESC appeared to have two posts of assistant/secretary at its disposal. One of these posts was given to a trainee. However, it is not clear how the other post was filled."

The EESC was requested to give further information concerning this issue.

"3) In his complaint, the complainant stated that, on 26 October 2004, he was contacted by telephone by the person in charge of the selection procedure at the EESC, Ms K.B., who informed him that he was offered the post of assistant/secretary and who further advised him rapidly to resign from his current post and to undergo the medical examination. However, in its opinion the EESC stated that no offer of employment had ever been made to the complainant."

The EESC was requested to comment on this issue.

"4) It emerges from the EESC's opinion that the EESC had initiated a procedure aiming at the recruitment of the complainant but that this procedure was put on hold because the EESC had an unexpected possibility to recruit a candidate who had passed a competition organised by EPSO."

The EESC was requested to specify the dates (i) when its Recruitment Office was asked to launch the recruitment of the complainant and (ii) when the possibility to recruit a candidate from an EPSO reserve list arose.

5) The EESC was requested to explain why it decided to recruit a person working as a trainee in the Joint Latvian Translation Service, although (i) the complainant was on a shortlist (ii) whereas the trainee was neither on the shortlist nor on any reserve list.

The EESC was further requested to indicate whether the trainee's merits were compared to those of the complainant before the decision was taken to recruit the trainee.

The EESC's Reply

In its reply, the EESC made, in summary, the following statements:

(1) As regards the first issue concerning the alleged delay in the recruitment procedure

The EESC stated that three factors explained why the second EESC assistant/secretary post was only filled in "January 2005"(3).

First, from May 2004 to December 2004, the Joint Latvian Translation Service of the EESC and the COR had two assistants, as well as two vacant assistant/secretary posts. The first translator (who was the Head of Unit) only took up his duties in October 2004. In December 2004, only seven translators were in service. This meant that the ratio translators/assistants was reasonable at that point in time, even though there were only two assistants.

Second, the EESC was informed, just after the enlargement of the European Union in 2004, that a Head of Unit for the Joint Latvian Translation Service would take up service in the early autumn 2004. It appeared appropriate to postpone a non-urgent recruitment of assistants/secretaries in order for the future Head of Unit to comment on the successful candidate. The Head of Unit took up service on 1 October 2004.

Third, although the complainant had a good knowledge of languages, the Selection Committee wrote, in the report received by the Directorate of Human and Financial Resources, that it had serious doubts about his capacity to integrate into the newly established translation secretariat team.

(2) As regards the second issue concerning the filling in of the other post besides the one awarded to the trainee

The EESC stated that the other post was filled by candidate C(4), who already had been a temporary agent at the EESC since 1 May 2004.

(3) As regards the third issue concerning the alleged offer of employment made to the complainant

The EESC stated that it was difficult to know exactly which words were used, in the course of a telephone conversation that took place two-and-a-half years earlier, by the secretary in charge of organising interviews/medical check-ups. The fact that this person was no longer working for the EESC made this task more difficult.

The EESC stated that, in any case, an oral statement made on the occasion of a telephone conversation with a secretary could not be considered to constitute an "offer of employment" that was binding on the institution.

The EESC further stated that, in order to gain time, candidates were usually asked to undergo a medical examination, even prior to the final decision as regards their recruitment. The EESC further stated that candidates were normally informed not to give up their current post until a definitive decision as regards their recruitment had been taken.

(4) As regards the fourth issue concerning the dates (i) when the Recruitment Office was asked to launch the recruitment of the complainant and (ii) when the possibility arose to recruit a candidate from an EPSO reserve list

The EESC stated that it had no written record of when exactly the newly recruited Head of Unit asked the Recruitment Unit to launch the recruitment of the complainant. According to the Head of Unit, it might have been during the week of (Monday) 11 to (Friday) 15 October 2004.

As stated in the EESC's first opinion, it was on 20 October 2004 that the EESC realised that a possibility to recruit a candidate from an EPSO list had arisen.

(5) As regards the fifth issue concerning the decision to recruit, as an assistant/secretary, a person working as a trainee in the Joint Latvian Translation Service

The EESC did not make any specific comments on the first part of the Ombudsman's question, that is, the fact that the complainant was on a shortlist whereas the trainee was neither on a shortlist nor on any reserve list.

As regards the second part of the Ombudsman's question, the EESC stated that the merits of the trainee and the merits of the complainant were implicitly compared. The trainee, in contrast to the complainant, had already proven her worth to the Unit. He already knew the work in terms of priorities, document types, procedures and IT tools.

The Complainant's Further Observations

In his further observations, the complainant submitted the following further comments:

The EESC lacked Latvian translators with a knowledge of English, French and German. The other candidates only mastered one or two of these languages.

He further stated that the EESC's comment that he might encounter difficulties in integrating in a team was mere conjecture. He recalled that, during the interviews, he was complimented on his education and knowledge of languages.

The complainant repeated his view that he considered himself to be the appropriate candidate for the post of assistant/secretary, as he had passed the selection procedure. In his view, the position should not have been given to the trainee, who was carrying out quite different duties and who went through a completely different selection procedure. The fact that the trainee developed certain professional skills after working for only two months at the EESC was not a defence for unlawfully assigning the trainee to a different position, intended for a different candidate, that is, for the complainant, when the latter had not been given the opportunity to prove his professional skills.

THE DECISION

1 Preliminary section: factual background

1.1 The complainant lodged a complaint against both the Committee of the Regions of the European Union ("COR") and the European Economic and Social Committee ("EESC") in relation to their respective decisions not to recruit him as an assistant/secretary at the Joint Latvian Translation Service. This joint translation service is shared between the COR and the EESC and is staffed by officials of both Committees. The complainant's allegations and claims against the COR and the EESC were identical. However, as the complaint concerned two separate institutions, the complaint was dealt with by the European Ombudsman in two separate inquiries(5). The COR and the EESC sent separate opinions to the Ombudsman. In his request for further information, the Ombudsman also put different questions to the COR and the EESC.

In order to determine whether there was an instance of maladministration by the EESC in the present complaint, the Ombudsman, first, finds it useful to describe the factual background at the origin of the selection procedure at the Joint Latvian Translation Service.

The Ombudsman would like to point out that the factual background has been established after a parallel examination of the opinions and further replies of the COR and the EESC. The Ombudsman would also like to point out that, although the present decision only concerns the EESC, the COR is also mentioned in the following paragraphs given that the COR and the EESC jointly organised the selection procedure which is dealt with in the present inquiry.

1.2 After a careful examination of the opinions and further replies of the COR and the EESC, the Ombudsman understands the factual background to be as follows:

The Joint Latvian Translation Service forms part of the joint services that are shared between the COR and the EESC. It is composed of officials and other agents of both the COR and the EESC. However, the administrations of both the COR and the EESC remain separate.

At the beginning of February 2004, the COR and the EESC jointly organised a selection procedure to fill four vacant positions for assistants/secretaries at the Joint Latvian Translation Service. Two positions were placed at the disposal of the COR and two others at the disposal of the EESC.

The COR first carried out a pre-selection procedure in relation to the candidates on EPSO's "contractual or temporary agent reserve list". It appears that EPSO's "contractual or temporary agent reserve list" was established with a view to filling posts which could not be filled by the recruitment of candidates who had passed an EPSO open competition.

A Selection Committee composed of members representing both the COR and the EESC interviewed candidates on EPSO's contractual or temporary agent reserve list. On the basis of the result of these interviews and a comparative assessment of the candidates' educational background and professional experience, the Selection Committee drew up, in order of merit, a shortlist of five candidates. The complainant was among these five shortlisted candidates(6). These candidates were to be recruited by either the COR and the EESC, by order of merit. The complainant was informed by letter of the COR of 29 March 2004 that his name had been put on the shortlist of five candidates established by the COR and the EESC (hereinafter "the shortlist").

1.3 The COR decided to fill its first position by recruiting candidate “A”(7), an official whose name had been put on the reserve list of Open Competition EPSO/C/6/03.

As regards its second position, the COR recruited a candidate from the shortlist of the five pre-selected candidates, namely, candidate "B". That candidate was ranked higher on the shortlist than the complainant. At this stage, the complainant's name was still on the shortlist and the COR then transferred the complainant's file to the EESC.

1.4 The EESC decided to fill its first position by recruiting a candidate whose name was on the shortlist (candidate "C"). That candidate was placed higher on the shortlist than the complainant(8).

As regards its second position, the EESC initially tried to fill it by seeking to appoint a person from the reserve list established as a result of Open Competition EPSO/C/6/03 (candidate "D"). However, another service, namely, the Directorate for Consultative Work A, also expressed its wish to recruit candidate D.

Given that two services wished to recruit candidate D and it was not sure that he could be recruited by the Joint Latvian Translation Service, the EESC, by letter of 25 October 2004, invited the complainant to undergo a medical examination.

On 27 October 2004, the complainant was informed that successful candidates of an EPSO open competition, whose names were not on the shortlist of the five candidates established following the selection procedure for the recruitment of assistants/secretaries, in which the complainant had taken part, were also allowed to participate in the relevant procedure.

On 29 October 2004, the EESC interviewed candidate D. The Recruitment Unit finally decided that candidate D would be recruited to work at the Directorate for Consultative Work A.

On 17 November 2004, the Head of the Joint Latvian Translation Service launched a procedure with a view to recruiting, to the remaining position of assistant/secretary, a person who had been working as a trainee in the Joint Latvian Translation Service since 16 September 2004. The official offer of recruitment to the position of assistant/secretary was signed by the EESC's Secretary-General on 23 December 2004.

In mid-November 2004, the complainant met the Head of Unit of the Joint Latvian Translation Service who informed him that the position of assistant/secretary was to be offered to a person who had been a trainee at the EESC.

2 The alleged abuse of power and lack of transparency in the selection procedure for the post of assistant/secretary in the Joint Latvian Translation Service

2.1 In his complaint, the complainant alleged that there had been an abuse of power and a lack of transparency in the selection procedure for the position of assistant/secretary in the Joint Latvian Translation Service. In order to support his allegation, the complainant pointed out that the trainee(9) who had been offered the position had not undergone a formal interview and that his name was not on the shortlist of the five candidates. He argued that the trainee had been offered the position following the unilateral decision of the Head of Unit of the Joint Latvian Translation Service to recruit that trainee.

2.2 In its opinion, the EESC stated that, in October 2004, the Head of the Joint Latvian Translation Service asked the Recruitment Unit to "launch the recruitment" of the complainant, who was the only person whose name was still on the shortlist. On 20 October 2004, the EESC realised that, contrary to what had been the situation thus far, a possibility had arisen to recruit a candidate (candidate D) from the EPSO reserve list corresponding to Open Competition EPSO/C/6/03. The EESC stated that it had never made an offer of employment to the complainant. The EESC further stated that it was not legally bound by the result of the selection procedure for Latvian assistants/secretaries in which the complainant had participated. The EESC stated that recruitment to the EESC is possible when there is an adequate budget and the qualifications of a candidate correspond to the job.

2.3 In his observations, the complainant stated that he had never been interviewed by the Head of the Joint Latvian Translation Service with an eye to having his skills assessed and compared to the skills of the trainee who had subsequently been selected for the post.

2.4 In view of the complainant's observations and the EESC's opinion, the Ombudsman considered it appropriate to ask the EESC for further information as regards the complainant's first allegation. The Ombudsman asked the EESC to comment on the following points: (i) the issue concerning how the second position at its disposal had been filled in; (ii) the issue concerning the alleged offer of employment made to the complainant; and (iii) the dates when the Recruitment Office was asked to launch the recruitment of the complainant and when the possibility to recruit a candidate from an EPSO reserve list arose. The EESC was further requested (iv) to explain the reasons why it decided to recruit the person working as a trainee, although the complainant was on a shortlist whereas the trainee was neither on a shortlist nor on any reserve list and (v) to indicate whether the merits of the trainee were compared to those of the complainant before the decision was taken to recruit the trainee.

2.5 In its reply to the further inquiries, the EESC pointed out that, as the filling of the other position besides the one awarded to the trainee, the EESC stated that this post had been filled by candidate C whose name had been put on the shortlist(10).

As regards the issue concerning the alleged offer of employment made to the complainant, the EESC stated that an oral statement made on the occasion of a telephone conversation with a secretary could not be considered to constitute an "offer of employment" that was binding on the institution. The EESC also stated that, in order not to delay the recruitment procedure, it was a frequent practice that candidates for a position were asked to undergo a medical examination even before it was decided whether they would be recruited or not.

As regards the issue concerning the dates when (i) the Recruitment Office was asked to launch the recruitment of the complainant and (ii) the possibility to recruit a candidate from an EPSO reserve list arose, the EESC stated that it had no written record of when exactly the newly recruited Head of Unit asked the Recruitment Unit to launch the recruitment of the complainant but that it should have been during the week of (Monday) 11 to (Friday) 15 October 2004. Finally, it was on 20 October 2004 that the EESC realised that a possibility to recruit a candidate from an EPSO list had arisen.

As regards the issue concerning the decision to recruit the trainee, the EESC stated that the latter's merits and the ones of the complainant had been "implicitly compared".

2.6 In his additional reply, the complainant made observations on the comments made by the selection committee on the occasion of his interview for the post of assistant/secretary. He stated that the EESC's comment that he might encounter difficulties in integrating in a team was mere conjecture. The complainant repeated his view that he was the appropriate candidate for the position of assistant/secretary, as he had passed the selection procedure. In his view, the position should not have been given to the trainee. The complainant further repeated that, following his request made to the Head of the Resources and Financial Unit of the EESC to clarify the situation, the Head of Unit briefly informed him, on the occasion of a telephone conversation, that the position had been offered to a trainee.

2.7 The Ombudsman finds it useful to divide the complainant's allegation into the two following sub-paragraphs, namely, (a) the alleged abuse of power and lack of transparency in the selection procedure, and (b) the alleged lack of transparency in the communication between the EESC and the complainant as regards the various steps and outcome of the selection procedure.

(A) The issue of the alleged abuse of power and lack of transparency in the selection procedure

2.8 In order to deal with the complainant's allegations of abuse of power and lack of transparency in the selection procedure, the Ombudsman finds it appropriate successively to examine whether the recruitment procedure of candidates C and D as well as the trainee were carried out by the EESC in accordance with principles of good administration, namely, the principle of fairness and the principle of transparency.

(i) as regards the recruitment of candidate C

2.9 The Ombudsman first of all recalls that, pursuant to the established case-law of the Community Courts, the assessments which a Selection Board makes when evaluating the candidates' knowledge and abilities constitute a value judgment. Absent a manifest error of assessment, the substantive assessment of the comparative merits of the various candidates by the Selection Committee cannot be called into question.

2.10 The Ombudsman recalls that the candidates on the shortlist were to be recruited by order of merit. He further notes that candidate C was awarded 14 points for the oral examination and that the complainant was awarded 12 points.

2.11 In his observations, the complainant stated that, whereas the EESC needed Latvian translators with a knowledge of English, French and German, the other candidates on the shortlist only mastered one or two of these languages, whereas he had knowledge of all three of them. The complainant therefore appears to challenge also the ranking of the candidates shortlisted made by the Selection Committee.

However, the Ombudsman notes that, under the section "Observations" concerning the complainant, the Selection Committee wrote the following comment: "Good knowledge of languages"(11) and that the languages indicated were "French, English and German". As such, it is clear that the Selection Committee did indeed take due account of the various languages which the complainant had knowledge of when carrying out the comparative assessment of the merits of the various candidates. The Ombudsman also notes that the first three candidates on the shortlist were awarded a higher mark for their oral examination than the mark awarded to the complainant. The Ombudsman notes, in this respect, that the comparative evaluation of the Selection Committee not only focuses on the number of languages which candidates may have knowledge of, but also the comparative level of proficiency in those languages. Thus the fact that other candidates on the shortlist may have mastered fewer languages than the complainant does not constitute evidence that there was a manifest error of assessment as regards the points awarded to the various persons on the shortlist.

2.12 The Ombudsman also notes that the comparative assessments carried out by the Selection Committee not only concerned a comparative assessment of the candidates' language skills, but also concerned, inter alia, a comparative assessment of their professional experience and of their suitability to carry out the tasks relevant to the position. The Ombudsman is of the view that the EESC's comment that the complainant "might encounter difficulties in integrating in a team" is the expression of the comparative assessment by the Selection Board of his suitability to carry out the tasks relevant to the position. In light of the above, the Ombudsman considers that there is no evidence to suggest that there was a manifest error in the assessment of the comparative merits of the various candidates.

2.13 The Ombudsman is cognisant of the broad margin of discretion which an institution enjoys as regards choosing which candidate, chosen from a list of suitable candidates, best meets the needs of the service. The Ombudsman notes however that the institutions had announced that the candidates shortlisted would be recruited by order of merit. The Ombudsman therefore concludes that the EESC, as regards the recruitment of candidate C, who was placed in a higher position than the complainant, respected the principle of fairness and the principle of transparency. The Ombudsman therefore considers that the complainant has not sustained his view that there was an abuse of power or a lack of transparency by the EESC when it recruited candidate C.

(ii) as regards the attempted recruitment of candidate D

2.14 The Ombudsman notes that the shortlist of contractual agents on which the complainant's name was placed was established with a view to filling posts which could not be filled by the recruitment of candidates placed on a reserve list resulting of candidates who had passed an EPSO open competition. The Ombudsman further notes that, during the interview, the candidates were informed that, in accordance with the policy of the COR and the EESC to recruit officials where possible, candidates who passed an EPSO open competition would be given priority as regards the appointment to vacant posts.

2.15 It appears that, following candidate D’s success in an EPSO competition, his name had been placed on the reserve list of Open Competition EPSO/C/6/03. Therefore, in accordance with the practice of recruiting officials, where possible, the EESC initially sought to recruit candidate D to one of the posts for the Joint Latvian Translation Service.

2.16 However, it appears that that candidate was subsequently recruited by another EESC service, namely, the Directorate for Consultative Work A. As candidate D was no longer available to be recruited to one of the posts for the Joint Latvian Translation Service, the EESC had to find another suitable candidate for the Joint Latvian Translation Service.

2.17 In light of the above, the Ombudsman is of the view that the attempts by the EESC to recruit candidate D respected the principle of fairness and the principle of transparency. The Ombudsman therefore considers that there was neither abuse of power nor lack of transparency by the EESC when it attempted to recruit candidate D.

(iii) as regards the recruitment of the trainee

2.18 Once the recruitment of candidate D proved unsuccessful, the EESC decided to recruit, for the last position of assistant/secretary, a trainee who had been working in the Joint Latvian Translation Service since 16 September 2004. The EESC stated that the trainee had been chosen for the traineeship through an independent selection procedure undertaken by the Traineeship Office. In its further reply, the EESC stated that an implicit comparative assessment had been carried out between the complainant's application and the trainee's one. The EESC stated that the trainee had already proven his worth to the Unit and that he was already "operational".

2.19 The Ombudsman notes that it clearly emerges from the documents in his possession that the name of the trainee was not on the shortlist for the post of assistant/secretary in the Joint Latvian Translation Service.

The Ombudsman considers that the fact that the trainee passed a selection procedure organised by the Traineeship Office is irrelevant in the present case for the following three reasons: (i) the selection procedure was for the award of a traineeship through a selection of trainees' applicants; (ii) the selection criteria used for the selection of the trainee and for the selection of the assistant/secretary could not have been the same, and (iii) the trainee recruited could not have met the criteria for participating in the selection procedure organised for the post of assistant/secretary at the Joint Latvian Translation Service because the selection committee appointed chose to interview candidates who were already on the EPSO reserve lists for Temporary and Contract agents.

2.20 While the EESC has stated that it carried out an implicit comparative assessment of the merits of the complainant and the trainee, the Ombudsman has not been provided with any evidence that an implicit comparative assessment of the merits of the complainant and the trainee was in fact carried out. In any event, it is evident that any implicit comparative assessment of the merits of candidates could not, per se, respect the principle of transparency. Further, given that any such implicit comparative assessment of the merits of candidates will not, by its very nature, be documented, it cannot be demonstrated that it respected the principle of fairness.

The Ombudsman notes that the purpose of a selection procedure is to carry out a comparative assessment of all candidates' applications. Principles of good administration require that such procedures be transparent and fair. In the present case, the COR and the EESC decided to conduct a selection procedure on the basis of suitable candidates to be found in EPSO lists for Temporary and Contract agents. It was on the basis of the CVs of those candidates who were on EPSO lists that the two institutions decided to conduct interviews and established a shortlist of suitable candidates to be recruited in order of merit. Any further comparison with persons outside EPSO lists, like trainees, clearly implies a breach of the procedure adopted and would not have respected the principle of fairness and ensured that there was no abuse of power. Moreover, as has been said before, in the present case, it also appears that no relevant comparative assessment was indeed carried out by the EESC when recruiting the trainee to the post of assistant/secretary.

2.21 The Ombudsman further considers that the EESC has a wide margin of discretion as regards recruitment. It was, in sum, not obliged to recruit the complainant, for the post of assistant/secretary in the Joint Latvian Translation Service, simply because he was the only candidate remaining on the shortlist (in this respect, see Section 4 below). However, if the EESC considered, for some other reasons (see point 3.5 below) that subsequently came to its knowledge, that the remaining candidate on the shortlist was not a suitable candidate for the job, it would have been good administrative practice for the EESC to declare that the validity of the shortlist had expired and informed the remaining candidate accordingly.

2.22 The Ombudsman further notes that Article 4 (The selection procedures)(12) of the EESC implementing rules on the recruitment of contract agents provides the following:

"The selection of the contractual agents of the [EESC] has to be carried out by the Authority Empowered to Conclude Contracts of Employment, according to one of the following provisions:

either a selection procedure organised by EPSO or, under its responsibility, in accordance with Article 82(5) of the Conditions of Employment of Other Servants of the European Communities, on the basis of calls for expression of interest;

or a selection procedure organised by the EESC with a view to establishing a reserve list. A Selection Committee will be established to this effect, including the participation of the Staff Committee. This type of selection procedure has to be applied until 30 April 2006. It will be however applicable afterwards in case EPSO would be unable to provide adequate lists.

The Authority Empowered to Conclude Contracts of Employment defines the choice of the selection procedure to be followed in the relevant case, taking into consideration the interest of the institution, the needs of the service and the urgent nature of the requested recruitments".

2.23 In light of the above, the Ombudsman considers that, by deciding to recruit the former trainee for the second position at its disposal, without terminating the validity of the shortlist drafted for this purpose and informing the candidates of this decision and without initiating and carrying out a new selection procedure, the EESC infringed its own implementing rules on the selection of contractual agents, namely, Article 4 mentioned above. The Ombudsman thus considers that the complainant's allegation that there was an abuse of power and a lack of transparency from the EESC in the selection procedure appears to be grounded. A critical remark will be made in this regard.

(B) The issue concerning the alleged lack of transparency in the communication between the EESC and the complainant as regards the various steps and the outcome of the selection procedure

2.24 It remains for the Ombudsman to determine whether the complainant was sufficiently informed of the various steps and outcome of the selection procedure.

2.25 In this context, the Ombudsman notes that, both in his complaint and observations, the complainant stated that, in May 2005, he contacted the Head of the Resources and Financial Unit of the EESC in order to be informed of the situation relating to his recruitment. The Head of Unit promised that he would clarify the complainant's situation. In June 2005, in the absence of any information, the complainant telephoned the Head of Unit, who briefly informed his that the post had been taken up by a (former) trainee.

2.26 In the present case, in view of the circumstances of the complainant's selection procedure, the Ombudsman considers that the EESC should have informed the complainant that it had decided to recruit, for the first post at its disposal, one of the candidates on the shortlist. The EESC should also have informed the complainant that, following the refusal of the offer of employment by the official initially foreseen to occupy the second post, the Head of the Joint Latvian Translation Service had launched the recruitment of the trainee on 17 November 2004. The Ombudsman is of the view that a mere conversation by telephone between the complainant and the Head of the Resources and Financial Unit of the EESC, on the occasion of which the Head of Unit briefly informed the complainant that "the position was occupied by a trainee" cannot be considered to constitute an adequate reply to the complainant's request to have the situation clarified.

2.27 The Ombudsman is of the view that, by failing to inform the complainant of the various steps taken in the selection procedure and of its decision to fill the two relevant positions, the EESC failed to act in a transparent way. This failure therefore constituted a further instance of maladministration. A second critical remark will be made in this regard.

3 The alleged long delay in the selection procedure for the post of assistant/secretary in the Joint Latvian Translation Service

3.1 The complainant alleged that there had been procedural irregularities in the selection procedure for the position of assistant/secretary in the Joint Latvian Translation Service. During the course of the Ombudsman's inquiry, the complainant clarified that this allegation related to the time it took the EESC to reach its final decision.

3.2 In its opinion, the EESC stated that the two interviews with candidate D took place on 29 October 2004 and both services, namely, the Joint Latvian Translation Service and the Directorate for Consultative Work A, expressed their wish to recruit candidate D. The Recruitment Unit decided, during the first half of November 2004, that candidate D would be assigned to the Directorate for Consultative Work A. In view of this, on 17 November 2004, the Head of the Joint Latvian Translation Service initiated a request to recruit a trainee who had worked in the Joint Latvian Translation Service since 16 September 2004 and who had been chosen through an independent selection procedure by the Traineeship Office. The official offer of recruitment of the trainee was signed by the Secretary-General of the EESC on 23 December 2004.

3.3 In his observations, the complainant stated that, although the selection procedure began in February 2004, the decision to fill the last vacancy was signed by the Secretary-General on 23 December 2004.

3.4 In view of the complainant's observations and the EESC's opinion, the Ombudsman considered it appropriate to ask the EESC to comment on the following issue: in his observations, the complainant stated that there had been a long delay in the recruitment procedure. In his complaint, the complainant had alleged that there had been procedural irregularities. He made it clear that this allegation related to the time it took the EESC to reach its decision.

3.5 In its additional reply, the EESC pointed out that three elements explained why the second EESC assistant/secretary position was only filled in January 2005: (i) From May 2004 to December 2004, the Latvian Unit of the EESC and the COR had two assistants, as well as two vacant assistant/secretary positions. This should be seen in comparison with the number of translators in the Unit. (ii) It appeared appropriate to postpone a non-urgent recruitment in order for the future Head of Unit to have the opportunity to express his point of view on the successful candidate. (iii) Although the complainant had a good knowledge of languages, the Selection Committee wrote, in the report received by the Directorate of Human and Financial Resources, that it had serious doubts about his capacity to fit into a newly established translation secretariat team.

3.6 The Ombudsman would like to underline that he is not aware of any precise deadlines imposed on the administrations to issue recruitment offers to candidates shortlisted after a selection procedure.

3.7 The Ombudsman notes that, in its further reply, the EESC gave three reasons to explain the length of time taken by the selection procedure. The Ombudsman is of the view that the first and the third reasons invoked by the EESC do not concern its alleged delay. The second reason, namely, that it appeared appropriate to postpone a non-urgent recruitment in order for the future Head of Unit to comment on the successful candidate, appears to be the only relevant reason invoked by the EESC.

3.8 The Ombudsman notes that the decision to recruit the trainee to the second position(13) at the EESC’s disposal was signed by the Secretary-General of the EESC on 23 December 2004, that is, nine months after the selection procedure was concluded in the end of March 2004(14). In view of the above, the Ombudsman considers that the complainant has not sustained his view that this constituted an undue delay. In light of the above, the Ombudsman finds that no further inquires are necessary as regards this aspect of the complainant’s allegation.

4 The complainant's claims

4.1 The complainant claimed that (i) he should receive compensation or receive a proposal of an equivalent post. He further claimed that (ii) persons in charge of the recruitment at the EESC should put an end to the irregularities in the recruitment procedure and should be reprimanded.

4.2 As regards the complainant's claim to be paid compensation, the Ombudsman recalls that the granting of compensation presupposes the establishment, by the applicant, of illegal behaviour, damage and a causal link between this behaviour and the alleged damage suffered.

As regards the complainant's claim that he should receive a proposal of an equivalent post, the Ombudsman would like to recall that, according to the case-law of the Community Courts, candidates whose names are included in the list of suitable candidates have not acquired a right to be appointed to the relevant vacant positions. The Court of First Instance has held that they "(…) are merely eligible, and not entitled, to be appointed"(15). Pursuant to the case-law of the Community Courts, this rule applies a fortiori to the recruitment of contractual agents, the Authority Empowered to Conclude Contracts of Employment having, in this regard, a wider margin of discretion in the selection of the candidates(16). The Ombudsman therefore considers that the fact that the complainant's name had been placed on the shortlist did not oblige the EESC to recruit him.

4.3 The Ombudsman notes that, in his complaint to him, the complainant stated that, on 26 October 2004, he had been contacted by telephone by the person in charge of the selection procedure at the EESC, that is, Ms K.B. The complainant also explained that Ms K.B. informed him that he had been offered the position of assistant/secretary and further advised him rapidly to resign from his current job and to undergo a medical examination. The Ombudsman notes that, both in its opinion and its further reply, the EESC contested the existence of a job offer made to the complainant. In the complainant's case, in view of the uncertainty about the outcome of the recruitment procedure of candidate D, and in order not to delay the recruitment procedure, the EESC invited the complainant to undergo a medical examination.

4.4 The Ombudsman recalls, in this context, that "according to settled case-law, the right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain legitimate expectations. Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources (...). However, a person may not plead breach of the principle unless he has been given precise assurances by the administration (...)"(17) (emphasis added).

4.5 As regards the issue of the information given to the complainant to resign from his current post, the Ombudsman is of the view that information, allegedly given on the occasion of a telephone conversation by a secretary in charge of organising the interviews and the candidates' invitations to a medical examination, cannot be reasonably considered to constitute a firm offer of employment. Thus, in these circumstances, such information cannot give the complainant legitimate expectations to be recruited, since it cannot be construed as "precise, unconditional and consistent information from authorised and reliable sources".

However, the Ombudsman would like to point out that it is good administrative practice for the European institutions to inform staff charged with the task of communicating with candidates that they (i) should not advise a candidate to a selection procedure to resign from his/her current job, and (ii) should not give any other information concerning the outcome of a selection procedure, unless they are specifically instructed to do so by the relevant competent authority. In the event that staff is instructed to contact candidates by telephone, an appropriate note for the file should be drafted to record such contacts(18). A further remark will be made in this regard.

4.6 As regards the issue of the complainant's invitation to a medical examination, the Ombudsman further notes that the EESC invoked two reasons to explain the invitation to the complainant: (i) the uncertainty of the outcome of the recruitment procedure of candidate D and (ii) its desire to avoid delays in the recruitment procedure. In the Ombudsman's view, it appears reasonable to assume that, as a general rule, only the candidate who has been chosen for the position should be invited to undergo a medical examination. The Ombudsman considers, however, that, in view of the specific circumstances of the case, the reasons to justify its decision to ask the complainant to pass the medical examination appear to be reasonable.

4.7 The Ombudsman is of the view that, even if there was an abuse of power and a lack of transparency from the EESC by recruiting the trainee for the position of assistant/secretary at the Joint Latvian Translation Service, the complainant was not entitled to be recruited by the EESC merely because his name had been placed on the shortlist. In light of the above, the Ombudsman considers that the complainant has therefore not established a causal link between the EESC's behaviour and any damage suffered by him. In these circumstances, the Ombudsman considers that the complainant has not sustained his claim that he should be compensated or be offered an equivalent position. The Ombudsman therefore considers that there are no grounds for further inquiries as regards these aspects of the complainant's first claim.

4.8 The complainant further claimed that the Ombudsman should recommend that the persons in charge of recruitment at the EESC put an end to the irregularities in the recruitment procedures and be reprimanded. It thus appears that the complainant claims that the Ombudsman should suggest that disciplinary sanctions be taken in relation to the officials concerned, without specifically mentioning the officials in question. Given that disciplinary sanctions can in any event only be imposed after the disciplinary proceedings foreseen in the Staff Regulations have been carried out, the Ombudsman is unable to pronounce himself on a claim that such sanctions should be imposed in a given case. The Ombudsman recalls that his role is to conduct inquiries into instances of maladministration by the institutions of the European Union. It is not in his mandate to exercise any disciplinary powers in relation to officials or agents and not even to suggest that this should be done. On the other hand, Article 4 (2) of the Ombudsman's Statute provides that the Ombudsman has the possibility to "inform" the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view. In the circumstances of the present case, the Ombudsman does not consider it appropriate to do so.

In relation to the instances of maladministration found in the EESC's behaviour in conducting the procedure for filling the two vacant positions, the European Ombudsman makes the two critical remarks below.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following two critical remarks:

(1) The Ombudsman notes that no appropriate comparative assessment was carried out by the EESC when recruiting the trainee to the position of assistant/secretary. Even if such a comparative assessment had been made between the remaining candidate on the list and the former trainee, this would have been in breach of the procedural rules the EESC had adopted in order to fill the vacant positions. Were the EESC to consider, for any valid reason, that the remaining candidates on the shortlist were after all not suitable for recruitment, it should have declared that the validity of the shortlist had expired and have informed the remaining candidates accordingly.

The Ombudsman considers that, by deciding to recruit the former trainee for the second position at its disposal, without carrying out a new selection procedure, the EESC infringed its own implementing rules on the selection of contractual agents, namely, Article 4.

The Ombudsman considers that the complainant's allegations that there was an abuse of power and a lack of transparency from the EESC in the selection procedure are therefore grounded.

(2) The Ombudsman is of the view that, by failing to answer to the complainant's request for information on the various steps taken in the selection procedure and on the decision to fill the two relevant positions, the EESC failed to act in a transparent way. This failure therefore constituted a further instance of maladministration.

In addition, the Ombudsman finds it necessary to make the following further remark:

It is good administrative practice for the European institutions to inform staff charged with the task of communicating with candidates that they should not advise a candidate to a selection procedure to resign from his/her current job, and should not give any other information concerning the outcome of a selection procedure, unless they are specifically instructed to do so by the relevant competent authority. Further, when staff are instructed to contact candidates by telephone, an appropriate note for the file should be drafted to record such contacts.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes this aspect of the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) In this context, the Ombudsman would like to highlight that, according to his interpretation of facts, the four permanents posts at the disposal of the COR and the EESC were to be awarded to contractual agents, on a provisional basis, pending the recruitment of officials who would have successfully sat an EPSO open competition.

(2) The Ombudsman finds it appropriate to use the initials A, B, C and D to refer to the candidates who were eventually awarded the relevant four posts at the disposal of the COR and the EESC. Candidate A was on the reserve list of Open Competition EPSO/C/6/03 and was eventually recruited to one of the posts that was available in the COR. Candidate B was the first candidate on the shortlist established by the COR and the EESC and was eventually recruited by the COR. Candidate C was the third candidate on the shortlist of five candidates established by the COR and the EESC and was eventually recruited by the EESC. The candidate who ranked second on the shortlist refused the offer because he wanted an indefinite period contract. Candidate D was a successful candidate on the reserve list established as a result of Open Competition EPSO/C/6/03. Despite efforts by the Joint Latvian Translation Service to recruit candidate D, that candidate was recruited by another service, that is, the Directorate for Consultative Work A.

(3) In this regard, the Ombudsman notes that the decision to fill the last vacancy at the disposal of the EESC was signed by the Secretary-General of the EESC on 23 December 2004.

(4) The Ombudsman notes that candidate C was ranked third on the shortlist of the five candidates.

(5) The inquiry in relation to the COR is dealt with in Decision 2472/2005/MF.

(6) On the basis of the documents in the file, the Ombudsman notes that the complainant was ranked fourth on the shortlist.

(7) See note 2 above.

(8) On the basis of the documents in the file, the Ombudsman notes that candidate C was ranked third on the shortlist. The candidate ranked second on the shortlist refused the offer because it appears that he wanted a contract of an indefinite duration.

(9) In view of the factual background, the Ombudsman understands that the "trainee" to whom the complainant refers is the candidate who was offered the fourth post at the EESC.

(10) See footnote 7.

(11) Translation from the original French version by the Ombudsman's services.

(12) The original French version provides as follows (translation by the Ombudsman’s services):

"Article 4 Procédures de sélection : La sélection des agents contractuels du Comité économique et social européen s'opère au choix de l'AHCC, selon l'une ou l'autre des modalités suivantes :

Soit Procédure de sélection organisée par l'EPSO ou sous sa responsabilité, conformément à l'art. 82, paragraphe 5 du RAA, sur base du lancement d'appels publics à manifestation d'intérêt.

Soit Procédure de sélection organisée par le Comité économique et social européen en vue de la constitution d'une liste d'aptitude. Un comité de sélection est constitué à cet effet avec la participation de la représentation du personnel. Ce type de sélection est possible d'office jusqu'au 30 avril 2006. Cependant, après cette date, ce type de sélection pourra toujours être appliqué dans des cas où l'EPSO n'est pas en mesure de fournir des listes adéquates.

L'AHCC établit la modalité de sélection applicable au cas d'espèce, en considération de l'intérêt de l'institution, des exigences de service et de l'urgence des recrutements demandés."

(13) The Ombudsman has not found any information in the complaint’s file on the exact date of recruitment of the first candidate recruited by the EESC.

(14) The Ombudsman notes that, by letter of 29 March 2004, the complainant was informed that he had been shortlisted together with four other candidates.

(15) See Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143. See also Article 30, paragraph 2, of the Staff Regulations which states that "[t]he appointing authority shall decide which of these [suitable] candidates to appoint to the vacant posts."

(16) See Case T-217/96 Fabert-Goossens v Commission [1998] ECR-SC I-A-607 and II-1841.

(17) See Case T- 273/01 Innova Privat-Akademie v Commission [2003] ECR II-1093, paragraph 26. In this paragraph the Court refers to Joined Cases T-66/96 and T-221/97 Mellett v Court of Justice [1998] ECR-SC I-A-449 and II-1305, paragraphs 104 and 107; and Case T-290/97 Mehibas Dordtselaan v Commission [2000] ECR II-15, paragraph 59.

(18) The Ombudsman notes that, in the present case, the EESC argues that it has no ability to determine the nature of contacts made by staff who have since left the service. This eventuality could have been avoided if appropriate notes for the file had been systematically prepared.