Strasbourg, 15 November 2006

Dear Mr T.,

On 23 March 2006, you made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/AD/35/05 organised to constitute a reserve list of Bulgarian-language linguistic administrators (AD5) in the field of translation (OJ C 282 A/3-18).

On 21 April 2006, my services telephoned you as regards your complaint.

On 10 May 2006, I forwarded the complaint to the Director of EPSO.

On 12 May 2006, you sent additional information concerning your complaint, which I forwarded to EPSO on 25 May 2006.

On 6 June 2006, I received EPSO's opinion on your complaint, which I forwarded to you with an invitation to make observations. No observations appear to have been received from you.

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

THE COMPLAINT

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

The complainant successfully registered via the Internet for Open Competition EPSO/AD/35/05 to constitute a reserve of Bulgarian-language linguistic administrators in the field of translation (AD5) within the established deadline. Afterwards, the European Personnel Selection Office ("EPSO") invited him, via his EPSO profile, to confirm his registration and language choice, and to choose the city in which he wished to sit the admission test. According to the Notice of Competition, the confirmation should have taken place within two months of the closing date for registration (that is, up to 16 February 2006).

The complainant needed some time for reflection and decided to confirm his registration on the latest possible date. However, on 10 February 2006, he became seriously ill. On the first date after his recuperation from illness, on 1 March 2006, he sent his (belated) confirmation of registration and asked EPSO to take it into consideration given his illness. He also sent to EPSO the affidavits from his doctor that he was ill from 10 February till 28 February 2006.

On 14 March 2006, EPSO replied that, after having examined the complainant's medical certificates, it could not take into consideration the complainant's belated confirmation given that (i) candidates had a long period of time at their disposal to confirm their registration (from 16 January till 16 February 2006), and (ii) more than 5500 candidates had been able to confirm their registration within that period. EPSO also stated that, according to the EPSO IT Department, the complainant opened the request for confirmation in his EPSO profile after the deadline for confirmation, on 1 March 2006 (at 21:28).

On 23 March 2006, the complainant lodged his complaint with the European Ombudsman. He also asked the Ombudsman for the urgent handling of his complaint given that the admission tests appeared to be scheduled to take place by 3 June 2006 (he mentioned a deadline of 5 May 2006 in his original complaint and, in his further letter of 12 May 2006, he mentioned a deadline of 3 June 2006).

In his complaint to the Ombudsman, the complainant alleged that EPSO acted unfairly by refusing to accept his confirmation of registration, which was slightly delayed as a result of illness.

He claimed that EPSO should allow him to take part in the competition.

THE INQUIRY

Preliminary remark concerning the priority handling of the complaint

Given that the complainant asked for the urgent handling of his complaint (by 3 June 2006 at the latest), the Ombudsman's services informed the complainant by telephone that, even if the case were given priority, the Ombudsman would not be able to reach a decision before the deadline indicated by the complainant. The complainant asked the Ombudsman to open an inquiry into his complaint anyway.

The Ombudsman asked EPSO to submit an opinion on this case before 3 June 2006. He explained to EPSO that the complainant informed him that EPSO has established the deadline of 3 June 2006 for the candidates to take part in the admission tests and that he was naturally concerned that, even if EPSO’s opinion on the complaint were to accept his arguments, it would be too late for him to participate. The Ombudsman pointed out therefore that participation in competitions represents for many of the citizens of the accession countries their very first experience of the functioning of European institutions and of how these institutions respect their rights and help them to realise their aspirations. It would thus demonstrate EPSO’s commitment to a service culture and to enhancing relations with citizens if it could take a stance on the complainant's allegation and claim before the above date.

EPSO's opinion

EPSO made its opinion on 30 May 2006. The opinion was received by the Ombudsman's Office on 6 June 2006. The opinion can be summarised as follows:

The complainant participated in Open Competition EPSO/AD/35/05 to constitute a reserve of Bulgarian-language linguistic administrators in the field of translation (AD5). The Notice of Competition was published on 15 November 2005 in Official Journal C 282 A. The deadline for applications was 15 December 2005.

The arrangements for the organisation of the admission tests were set out in Section D of the Notice of Competition "How to apply", which read as follows:

"within one month following the final date for registration, EPSO will invite you to confirm your registration and language choice and, where applicable, to choose the city in which you wish to sit the admission test. This request and your confirmation will take place via your EPSO profile only. If you do not confirm your application within two months from the closing date for registration, EPSO will consider that you have withdrawn your application and it will be terminated."

Point 2 of the above Section D informed the candidates that "[t]he candidates invited to the admission tests (...) will be those who are found to meet the general terms and conditions (...) after EPSO has carried out a preliminary eligibility check based on the information given in the registration forms, and who have confirmed their application in time."

On 16 January 2006, EPSO sent to the individual e-mail address of each candidate, including the complainant, an e-mail stating that there was a message in their EPSO profile and asking them to read it by clicking on the link.

After clicking on the link, the candidates were able to read EPSO's letter of 16 January 2006 informing them that they were asked to confirm their participation in the relevant competition by 16 February 2006 at the latest, and to choose the city/region where they wished to sit their admission tests. EPSO also reminded them that, if they did not confirm their application, EPSO would consider that they had withdrawn their application, and it would be terminated.

Since the complainant failed to confirm his participation in the competition within the time-limit, it was considered that he had withdrawn it and so EPSO had terminated his application. He was notified of this by letter dated 27 February 2006.

On 1 March 2006, the complainant contacted EPSO and asked that his late confirmation for Open Competition EPSO/AD/35/05 be accepted because he had been seriously ill and therefore unable to follow the procedure. He sent copies of two medical certificates, one for a period from 10 February till 17 February 2006 inclusive and the other for the period of 18 February till 28 February 2006.

After a careful examination of his request and of his medical certificates, on 14 March 2006, EPSO sent the complainant an e-mail confirming the termination of his application. EPSO stated in that e-mail that the other candidates (over 5500 of them) had had the opportunity to confirm their application within one month from 16 January 2006 till 16 February 2006. EPSO also stated that checks at the EPSO IT department revealed that the complainant opened the confirmation request placed in his EPSO profile on 16 January 2006 only after the deadline for confirmation (16 February 2006).

EPSO concluded that the provisions of the Notice of Competition were clear and each candidate was informed that from 16 January 2006 they would be given a period of one month to confirm their participation in the admission tests.

Moreover, the complainant had the opportunity to confirm his participation from 16 January 2006, long before the start of his illness. Considering that the period covered by his medical certificates was from 10 to 28 February 2006, the complainant had the first 25 days out of the 32 days within the time-limit to confirm his application (that is, from 16 January 2006 until and including 9 February 2006).

Given that the complainant was unable to prove the existence of a case of force majeure preventing him from confirming his participation over the whole period of 32 days, EPSO cannot accede to the complainant's request for his application to this competition to be accepted.

Finally, EPSO put forward in its opinion that checks at the EPSO IT Department established that EPSO's letter of 16 January 2006 was only opened by the complainant on 23 February 2006(1), that is, after the deadline of 16 February 2006, and during the complainant's illness.

The complainant's observations

No observations have been received from the complainant.

THE DECISION

1 Alleged unfairness of decision not to accept late confirmation

1.1 The complainant alleged that the European Personnel Selection Office ("EPSO") acted unfairly by refusing to accept his confirmation of registration for Open Competition EPSO/AD/35/05 to constitute a reserve list of Bulgarian-language linguistic administrators in the field of translation (AD5), which was slightly delayed as a result of illness.

He claimed that EPSO should allow him to take part in the competition.

In support of his allegation, he stated that he had initially intended to confirm his registration within the last days of the deadline and then he became ill and was not able to do so. He also asked for the urgent handling of his complaint, given that the admission tests appeared to be scheduled to take place on 3 June 2006.

1.2 EPSO took the view that it could not accede to the complainant's request for his application to this competition to be accepted, given that the complainant was unable to prove the existence of a case of force majeure preventing him from confirming his participation over the whole period of 32 days.

EPSO justified the above view, in summary, by the following arguments: first, the complainant was well informed about the time-limit (by the wording of the Notice of Competition and separate information sent to him by EPSO on 16 January 2006), and second, according to the Notice of Competition, the candidates were expected to register between 16 January 2006 up to 16 February 2006 (within 32 days) and the medical certificates submitted by the complainant covered only the last 7 days within the time-limit period. Therefore, the complainant had 25 days within the deadline to register before he became ill.

1.3 At the outset, as regards EPSO's first argument, the European Ombudsman points out that the complainant does not question that he was well informed about the deadline. Therefore the Ombudsman will not deal with this issue in the present decision.

1.4 Next, the Ombudsman understands that EPSO does not contest that the complainant's illness certified by medical certificates was a case of force majeure but that that this case of force majeure did not last all 32 days of the relevant time-limit.

1.5 In this respect, the Ombudsman recalls the well-established case-law that "the concept of force majeure essentially covers unusual circumstances which make it impossible for the relevant action to be carried out. Even though it does not presuppose absolute impossibility it nevertheless requires abnormal difficulties, independent of the will of the person concerned and apparently inevitable even if all due care is taken."(2)

1.6 In the light of the above, the Ombudsman notes that the Notice of Competition, the wording of which is, according to established case-law(3), the only binding guide for the appointing authority and the candidates, stated that the candidates had to confirm their registration "within two months of the closing date for registration"(4) and that there was no advice in the Notice of Competition that the candidates should confirm their registration within the first days of the deadline period. Furthermore, the Ombudsman notes that the Notice of Competition contained such an advice but as regards the registration of the application only(5).

1.7 In the Ombudsman's view, therefore, the candidates had the right to register their confirmation on every day of the time-limit period up to the deadline of 16 February 2006. Therefore, the complainant had reasonably the right to wait with his confirmation till the last day of the deadline included.

1.8 Next, the Ombudsman notes that the complainant was ill during the last seven days of the time-limit period. In this respect, the Ombudsman considers that the complainant's illness at the end of the lime-limit, which lasted up to the deadline of 16 February 2006 included, was apparently the cause of the complainant's inability to respect that deadline. Even if the complainant had recovered on 17 February 2006, he could no longer have made use of his right to confirm the registration, given that the deadline had expired.

1.9 The Ombudsman is therefore not convinced by EPSO's second argument.

1.10 Moreover, the Ombudsman is not aware of any provisions which could prohibit EPSO from extending the deadline for the confirmation of the registration if it is proved that, by reasons of force majeure, that deadline could not be respected.

1.11 On the contrary, the Ombudsman points out, by analogy, that, according to Article 45 of the Statute of the Court of Justice (version November 2005), "[n]o right should be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure."

1.12 In addition, the Ombudsman understands that candidates are required to confirm their registration in order to provide EPSO with the information necessary for the practical organisation of the tests such as material planning and preparation of sufficient places in the examination rooms for all the candidates. The Ombudsman does not consider, therefore, that the acceptance of the complainant's confirmation of his registration made two weeks after the deadline but still almost three months before the tests were scheduled(6) could reasonably be a major administrative inconvenience in the overall organisation of the tests.

The Ombudsman recalls, therefore, that the principles of good administration require an official, when taking decisions, to (i) avoid restricting the rights of the citizens or imposing charges on them, when those restrictions or charges are not in a reasonable relation with the purpose of the action pursued, and (ii) respect the fair balance between the interests of private persons and the general public interest(7). In addition, these principles require an official to act fairly and reasonably(8).

1.13 In light of his findings above, the Ombudsman considers that EPSO should have accepted the complainant's late confirmation given that his illness within the last seven days of the time-limit was causative of his inability to make use of his right to register up to the deadline of 16 February 2006. In addition, such acceptance could not reasonably be a major administrative inconvenience in the overall organisation of the tests.

The Ombudsman takes the view, therefore, that in these circumstances, by, on the one hand, not contesting that the complainant's illness certified by medical certificates was a case of force majeure and, on the other hand, not accepting the complainant's late confirmation, EPSO did not act proportionately and fairly. This was an instance of maladministration.

1.14 Given that the complainant's claim concerned the admission tests which have already taken place and the complainant did not send any observations, the Ombudsman does not consider that a friendly solution or draft recommendation would be appropriate in this case.

1.15 Therefore the Ombudsman will make a critical remark below.

2 Conclusion

On the basis of his inquiry into this case, the Ombudsman makes the following critical remark:

"The Ombudsman is not aware of any provisions which could prohibit EPSO from extending the deadline for the confirmation of the registration if it is proved that, by reasons of force majeure, that deadline could not be respected. On the contrary, the Ombudsman points out, by analogy, that, according to Article 45 of the Statute of the Court of Justice (version November 2005), "[n]o right should be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure."

The Ombudsman considers therefore that EPSO should have accepted the complainant's late confirmation given that his illness within the last seven days of the time-limit was causative of his inability to make use of his right to register up to the deadline of 16 February 2006. In addition, such acceptance could not reasonably be a major administrative inconvenience in the overall organisation of the tests.

The Ombudsman takes the view, therefore, that in these circumstances, by, on the one hand, not contesting that the complainant's illness certified by medical certificates was a case of force majeure and, on the other hand, not accepting the complainant's late confirmation, EPSO did not act proportionately and fairly. This was an instance of maladministration."

Given that the complainant's claim concerned the admission tests which have already taken place, and the complainant did not send any observations, the Ombudsman does not consider that a friendly solution or draft recommendation would be appropriate in this case. The Ombudsman has therefore closed the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) In this respect, the Ombudsamn notes that, in its e-mail of 14 March 2006, a copy of which was sent by the complainant together with his complaint, EPSO stated that "Après vérification auprès de notre service informatique, nous avons constaté que vous avez ouvert la demande de confirmation dans votre dossier EPSO après la date limite de la confirmation, le 1 mars 2006 (21h28)." (emphasis added).

(2) See, for instance, Case C 284/82 Acciaierie e Ferriere Busseni v Commission [1984] ECR 557, paragraph 11.

(3) See Case T-54/91 Antunes v Parliament [1992] ECR II-1739, paragraph 39.

(4) OJ C 282 A/12 of 15.11.2005: the Section "Important": "(...) if you do not confirm your application within two months of the closing date for registration (...)".

(5) Point 1 of Section D "'How to apply" of the Notice of Competition: "(...) It is your responsibility to complete your online registration in time. We strongly advise you not to wait until the last few days before applying, since heavy Internet traffic or a problem with the Internet connection could lead to the online registration being terminated before you complete it, thereby obliging you to repeat the whole process (...)".

(6) According to EPSO's website ( http://europa.eu.int/epso/competitions/news_en.cfm), "the admission tests were held in the time period between 15 May 2006 and 3 June 2006 inclusive".

(7) Article 6(1) and (2) of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.ombudsman.europa.eu

(8) Article 11 of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.ombudsman.europa.eu