Strasbourg, 8 April 2008

Dear Mrs M.,

On 23 April 2007, you submitted a complaint to the European Ombudsman against the European Commission, concerning your application for temporary employment with the Commission. On 25 June and 11 October 2007, you informed me of your new postal and e-mail addresses.

On 4 July 2006, I informed the President of the Commission of your complaint and asked him to submit an opinion on it by 30 September 2007. On 15 October 2007, the Commission sent its opinion in French. On 29 October 2007, it sent the English version of its opinion. On 17 November 2007, you requested information on the handling of your complaint. On 28 November 2007, I forwarded the Commission's opinion to you with an invitation to make observations, if you so wished.

On 5 December 2007, you sent me your observations on the Commission's opinion.

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

THE COMPLAINT

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

The complainant is an environmental expert with extensive working experience as an official with the British government. In 2005, she moved to Belgium to join her spouse. In January 2006, she applied for a temporary position with the European Commission through an electronic application, the so called "EU CV Online" system.

On 26 January 2006, she completed her application. On 30 January 2006, the complainant received a brief reply from the Commission in which it stated that the new online system was not fully operational, but that it should be available in mid-February 2006. As a result of this situation, her application had not been processed and she was invited to apply again at a later stage. In mid-February 2006, and then again every few weeks, the complainant consulted the new online system and realised that it appeared not to be operational and that its setting up was continuously being deferred.

The new system only became operative on 9 June 2006.

In the absence of any further information, the complainant sent a query to the Commission on 17 January 2007 in relation to the status of her application. On the same date, she received a standard reply with general information on the selection process. She considered the standard reply to be inadequate.

On 5 February 2007, the complainant submitted a formal complaint to the Commission in which she expressed her disappointment that, despite her skills and experience in areas relevant to the EU, she had not received, for more than a year, any communication regarding her application for employment. She also expressed concern as regards the fact that, notwithstanding the provisions of Directive 2000/78/EC on Equal Treatment in Employment(1) ("Directive 2000/78"), age appeared to be a criterion for the selection of candidates. She noted, in particular, that one of the first questions contained in the standard EU CV Online system concerned the applicants' age. She therefore asked for reassurance on this point. The complainant also requested information on a number of issues, namely, the percentage of permanent EU employees aged over 50 years; the steps being taken to ensure that the EU complies with the applicable European legislation on age discrimination; and the steps being taken by the EU regarding "inclusivity" of people aged over 50 years.

On 22 March 2007, the Commission replied to the complainant's queries. It acknowledged the complainant's frustration at having received a standard reply to her inquiry and provided the information requested. The Commission underlined that it was committed to avoiding any form of discrimination and made all necessary efforts to ensure the proper application of the anti-discrimination clause contained in Article 1(d) of the Staff Regulations. The institution explained that it would have liked to offer the complainant a more positive outlook with respect to job opportunities. However, it noted, there were more applicants than posts available. Accordingly, the Commission stated that a fair and transparent selection procedure was necessary, which generally took the form of selection tests organised by EPSO, whose website the complainant was invited to visit.

The complainant considered that the handling of her application and the related correspondence with the Commission were inadequate, and that the content of the Commission's reply to her complaint was insufficient. She suspected that age was used as a selection criterion and that she had been discriminated against on grounds of age. She therefore lodged a complaint with the European Ombudsman.

In her complaint to the Ombudsman, the complainant made, in summary, the following allegations and claims:

The complainant alleges that,

(1) the Commission's system for the selection of temporary/contractual agents may lead to discrimination based on age, since information on age is mandatory in the EU CV Online system;

(2) her application for employment with the Commission has been treated less favourably than others on grounds of age;

(3) the Commission did not adequately handle her initial application and the ensuing correspondence, since it failed to explain or apologise for the repeated delays in making the EU CV Online system operational.

The complainant claims that that she should receive from the Commission (i) an assurance that her application will not be treated less favourably on grounds of age and (ii) an explanation for the repeated delays in making the EU CV Online system operational.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first explained the background to the case, and then addressed each of the allegations made by the complainant.

(1) The use of age as a criterion in the selection procedure for temporary and contractual staff

The Commission explained that the objective reason for asking users their date of birth concerned technical, operational and legal issues. It noted that, from a technical point of view, the date of birth is one of the principal criteria used by databases to check for duplicate entries, identify individuals, and so on. Moreover, the Commission argued that age constitutes useful information when analysing an applicant's CV, since it can cross-check it against the graduation date or the number of years of professional experience, in order to assess the credibility of an applicant. The date of birth is therefore a fundamental tool needed to assess the thousands of unsolicited job applications and responses to calls for expressions of interest that the Commission receives on a regular basis.

From a legal point of view the Commission is required to check an applicant's age before taking him or her into service because no one can be employed below a certain age and because the Staff Regulations specify that, beyond a certain age, members of staff may, or even must, retire.

(2) Treatment of the complainant's application on grounds of age

The Commission emphasised that new staff were appointed solely on the basis of available funds and taking into consideration the interests of the service. Accordingly, the profile of each candidate was considered in light of the requirements of the job. Against this backdrop, the Commission argued that the possibility that the complainant was not contacted because of her age was wholly unfounded and speculative.

The Commission pointed out that it recruited individuals of all ages for all types of employment. Since 1 May 2004, about 800 people aged 50 years or over had been recruited or engaged, 320 of whom were 55 years or over. This represented 5% of the total number of new staff. Age distribution statistics showed that, as of January 2007, 31% of officials and temporary staff were 50 years or over. On the other hand, 10% of contractual staff were 50 years or over. These figures confirmed that no discrimination on grounds of age was involved in the Commission's employment policy or recruitment practices.

The Commission also explained that it receives a large number of unsolicited job applications from all over Europe. Applicants may be employed as:

(1) Officials: To become an official candidates have to be appointed as such, after having passed a competition. The Commission noted that the complainant had not passed such a competition.

(2) Contract staff: Applicants must be successful in the so-called CAST selection, which the complainant did not pass.

(3) Temporary staff, which includes:

(a) Temporary staff employed on a temporary basis under Article 2(a) of the Conditions of Employment of Other Servants of the European Communities ("CEOS"). Article 2(a) CEOS requires that a candidate has passed an ad hoc selection published on the EPSO website. However, the complainant's name is not on any list of candidates who have passed any such ad hoc selection.

(b) Temporary staff are employed on a temporary basis under Article 2(b) or 2(d) CEOS. At the Commission, (i) if the period of employment were more than three years, the same conditions would apply as for temporary staff employed under Article 2(a) CEOS. The complainant was excluded since her name was not on any list; (ii) if the period of employment were less than three years, no formal selection procedure would be required. In this event, however, the number of staff that may be employed is limited and subject to certain conditions laid down by Article 3 of Commission Decision C(2004)l 597/5 of 21 April 2004. Furthermore, since 2005, the Commission has been under a legal obligation to give priority to nationals from the countries that joined the European Union in 2004 and 2007 . The Commission pointed out that no exception is made to this general policy, unless there is a need for a very specialised type of profile.

In light of these criteria, the Commission argued that it was not surprising that the complainant had not been contacted about potential employment at the Commission.

(3) Handling of the complainant's first application and the delay in setting up the EU CV Online system

The Commission argues that the complainant's predicament resulted from the fact that she had made her first application during the transitional phase between the old system of processing job applications and the new EU CV Online system, which was finally set up later than originally envisaged.

The Commission explained that t he EU CV Online system was developed to gather and process personal data of external candidates interested in a position at the Commission or any other European or international organisation participating in the system. It pointed out that the system had been presented to and approved by the European Data Protection Supervisor, whose opinion dated 14 September 2006 was annexed to its opinion. The purpose of processing data through the EU CV Online system was to bring together in an electronic and searchable form all unsolicited and/or external applications, as well as the responses to calls for expressions of interest. Candidates had to complete and send their CV and application through the Internet. The EU CV Online system replaced the manual or semi-manual processing of unsolicited applications with a harmonised system. The Commission alone had some 30 000 applications of this type on its records, many of them duplicates. The new database was developed to address this problem and to make the whole selection and recruitment process simpler.

As regards the delay in setting up the new system, the Commission noted that the timeframe for developing and setting up such a complex application was contingent on a number of different factors, including budget availability, stated priorities, and the acceptance of the application by the functional owner of the project. The Commission pointed out that the high number of applications to be processed meant that its services did not have the means to give an individual reply to each candidate.

The Commission concluded by underlying that the complainant's claim that she was not contacted because of her age was unfounded.

The complainant's observations

In her observations on the Commission's opinion, the complainant repeated the allegations made in her complaint.

The complainant disagreed with some of the comments made by the Commission, and pointed out that she had not sent several applications, but just one, although this application had been deleted because of the change-over in the system. She had to complete another online form when the system became operative in June 2006, but that was effectively the same application.

The complainant underlined that her aim in submitting a complaint to the Ombudsman was to ensure, as a matter of principle, good practice in recruitment and non-discrimination on grounds of age. She explained that she did not object to providing her date of birth, but rather to having it displayed prominently on the first page of the EU CV Online system. In her view, dates of birth should be stored elsewhere and only used for diversity monitoring or by officials who do initial security/credibility or legal checks. She considered that she had been treated less favourably because of her age during the Commission's selection procedure, and therefore discriminated against because unnecessary attention had been drawn to her age/date of birth. In her view, this practice was contrary to Directive 2000/78, since the Commission had applied a provision, criterion or practice, namely, the requirement to have her date of birth prominently displayed on the first page of the EU CV Online system, which put her at a disadvantage.

The complainant noted that, in its opinion, t he Commission had not addressed her concern over the way the institution had handled her application. Although, she accepted that unavoidable delays may sometimes occur, she considered that the Commission had handled her application and the related correspondence inappropriately.

The complainant stated that the concept of the EU CV Online system was a good one, and should be applauded. However, in her view, the structure and content of the CV lodging process should be carefully reviewed to ensure that the data requested of applicants and the way it is presented are not subject to bias or potential discrimination.

THE DECISION

1 The Commission's use of age for recruitment purposes

1.1 The complainant alleges that the European Commission's system for the selection of temporary/contractual agents may lead to discrimination based on age, since the "EU CV Online" system requires that information with respect to age be provided by applicants.

The complainant is concerned by the fact that age appeared to be a criterion for the selection of candidates, notwithstanding the provisions of Directive 2000/78/EC on Equal Treatment in Employment(2) ("Directive 2000/78"). She notes that information on age/date of birth was displayed as one of the first questions in the EU CV Online system.

1.2 The Commission argues that the objective reasons for asking users their date of birth concern technical, operational and legal concerns. It notes that, from a technical point of view, the date of birth is one of the principal criteria used by databases to check for duplicate entries, identify individuals, and so on. From an operational perspective, the Commission argues that age constitutes a tool to assess the applicant's credibility , since this information can be used to analyse an applicant's CV by cross-checking it against the graduation date or the number of years of professional experience. From a legal point of view, the Commission states that it must check an applicant's age before taking him or her into service because no one can be employed below a certain age and because the Staff Regulations specify that, beyond a certain age, members of staff may, or even must, retire.

The Commission explains that the system had been presented to and approved by the European Data Protection Supervisor ("EDPS").

1.3 In her observations, the complainant points out that she did not object to providing her date of birth but only to having it displayed in a prominent position on the first page of the EU CV Online system. In her view, dates of birth should be stored elsewhere and only used for diversity monitoring, or by officials who do initial security/credibility or legal checks.

1.4 The Ombudsman recalls that, according to the European Court of Justice, the principle of non-discrimination on grounds of age constitutes a general principle of Community law(3). The principle of non-discrimination on grounds of age is also embodied in Article 21 of the Charter of Fundamental Rights(4). Pursuant to this principle, persons must not be treated differently on the basis of their age, unless such different treatment is objectively justified(5), such as by the need to achieve a legitimate aim. The Ombudsman also notes that the European Court of Justice has also stated that the means employed to achieve such a legitimate aim must be "appropriate and necessary"(6).

1.5 The principle of non-discrimination on grounds of age is also contained in Article 1d(1) of the Staff Regulations(7).

1.6 The Ombudsman also notes that, at the Community level, the legislative framework for combating discrimination on grounds of, among others, age, has been laid down in Directive 2000/78. The Directive forbids any direct or indirect discrimination resulting from the use of age considerations.

1.7 On the basis of the available information, it appears that job applicants who seek employment with the Commission are required to complete the so-called EU CV Online system and indicate their age/date of birth in the first page of the electronic form.

1.8 The Ombudsman first of all notes that the need to indicate age on the EU CV Online system applies to all candidates equally. However, this fact alone does not completely exclude the possibility that such information could be used for the purposes of treating certain candidates differently. According to Article 2(1)(2) of Directive 2000/78, indirect discrimination shall be taken to occur where:

"[A]n apparently neutral provision, criterion or practice would put persons having (...) a particular age (...) at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

As such, it is useful to verify that the inclusion of such information on the EU CV Online system serves to achieve a legitimate aim and the means of achieving that aim are appropriate and necessary.

1.9 The Ombudsman notes that the Commission has justified the inclusion of age in the EU CV Online system for objective technical, operational and legal reasons. It appears that the date of birth is employed by the Commission as a technical means to avoid duplicate entries or identify individuals; as an operational tool to assess the applicant's credibility by cross-checking it against relevant information; and as a legal mechanism to ensure compliance with the Staff Regulations.

Therefore, the inclusion of age in the EU CV Online system serves to achieve legitimate aims . Furthermore, the means for achieving these legitimate aims appear to be appropriate or necessary.

1.10 The Ombudsman is also mindful of the fact that, pursuant to Article 27(2) of Regulation 45/2001 on the processing of personal data ("Regulation 45/2001")(8), the EU CV Online system was, prior to being set up, submitted to the European Data Protection Supervisor (EDPS) in order to ensure that both the data to be included in that system and its processing complied with the provisions of that Regulation. The Ombudsman points out that, as stated in Article 4(1)(b) of the Regulation, data can only be collected for "specified, explicit and legitimate purposes".

The Ombudsman has carefully reviewed the contents of the EDPS's report of 14 September 2006, which the Commission annexed to its opinion. The Ombudsman notes that the EDPS specifically took account of the fact that the date of birth of candidates constituted an item of information to be included in the EU CV Online system(9). The Ombudsman further notes that, having analysed the type of data in question and its intended processing, the EDPS concluded that the EU CV Online system did not appear to breach the provisions of Regulation 45/2001. The EDPS also suggested that the Commission should be particularly vigilant as regards certain aspects involving the processing of that data(10). As such, the views of the EDPS as regards this issue would seem to coincide with those of the Ombudsman.

1.11 In view of the above considerations, the Ombudsman has concluded that the mere inclusion of information with respect to age/date of birth in the EU CV Online system does not necessarily lead to discrimination based on age. Therefore, there appears to be no maladministration as regards this aspect of the case.

2 Discrimination against the complainant on grounds of age

2.1 The complainant alleges that her application for employment with the Commission was treated less favourably than others on grounds of age. The complainant suspects that data related to applicants' age were used as a selection criterion and that she had been discriminated against on grounds of age.

The complainant therefore claims that the Commission should give her an assurance that her application will not be treated less favourably on grounds of age.

2.2 The Commission argues that new staff are appointed solely on the basis of available funds and taking into consideration the interests of the service. Accordingly, the profile of each candidate is considered in the light of the requirements of the service . Against this backdrop, the view that the complainant was not contacted because of her age was unfounded and speculative.

The Commission also explains that it recruits individuals of all ages for all types of employment. It gives statistics concerning the hiring of people over 50 years. In the institution's view, these statistics show that no discrimination on grounds of age takes place in the Commission's employment policy or recruitment practices.

The Commission further notes that applicants for a job may be employed as officials, as well as contract and temporary staff, and describes the criteria and requirements which candidates for each of these types of position must meet in order to be selected. The Commission argues that the complainant was not contacted about potential employment at that institution because she did not meet any of these criteria.

The Commission therefore takes the view that the complainant's claim that she was not contacted because of her age is unfounded.

2.3 In her observations, the complainant argues that she had been treated less favourably during the Commission's selection procedure because information on her age was prominently displayed on the first page of the EU CV Online system.

2.4 The Ombudsman notes that the general question of whether the Commission's general practice of including information with respect to age/date of birth in the EU CV Online system can, in itself, be discriminatory, has been already reviewed in Section 1 above.

2.5 As regards the individual assessment of the complainant's application, the Ombudsman notes that the complainant has based her case on a "suspicion" that she has been discriminated against on grounds of age. She has not, however, put forward any facts to support her case.

In the absence of any facts which might indicate that there has been direct or indirect discrimination against the complainant on grounds of age, the Ombudsman therefore concludes that there appears to be no grounds for further inquiries as regards this aspect of the case.

2.6 In connection with the handling of her application, the Ombudsman notes that the complainant has claimed that the Commission should give her an assurance that her application will not be treated less favourably on grounds of age. The Ombudsman further notes that the Commission has rejected, as unfounded and speculative, the possibility that the complainant had not been contacted because of her age, and therefore that her application had been treated less favourably on grounds of age.

In view of the findings above, and having regard to the Commission's statement, the Ombudsman considers that no further inquiries appear to be necessary with respect to this aspect of the case.

3 Commission's handling of the complainant's application

3.1 The complainant alleges that the Commission did not adequately handle either her initial application, or the related correspondence, since it failed to explain or apologise for the repeated delays in making the EU CV Online system operational.

The complainant claims that the Commission should provide her with an explanation for the repeated delays in making the EU CV Online system operational.

3.2 The Commission argues that the complainant's predicament resulted from the fact that she had made her first application during the transitional phase between the old system of processing job applications and the new EU CV Online system, which was finally set up later than had originally been envisaged.

The Commission explains that, in order to expedite the handling of the approximately 30 000 applications for employment that it receives, it developed the so-called EU CV Online system, whose aim is to gather and process personal data of external candidates seeking employment. By replacing the manual or semi-manual processing of unsolicited applications with a harmonised system, the new database makes the whole selection and recruitment process simpler.

As regards the delay in setting up the new system, the Commission argues that the timeframe for developing and setting up such a complex application was contingent on a number of different factors, including budget availability, stated priorities, and the acceptance of the application by the functional owner of the project. The Commission pointed out that the high number of applications to be processed meant that its services were unable to give an individual reply to each candidate.

3.3 In her observations, the complainant notes that she accepts that unavoidable delays may sometimes occur, although in her case, she considers that the Commission handled her application and the related correspondence inappropriately.

3.4 The Ombudsman has carefully reviewed the correspondence between the complainant and the Commission, a copy of which was annexed to the complaint.

On the basis of that information, it appears that, on 26 January 2006, the complainant wrote to the Commission and inquired about the possibility of being employed by that institution. The Commission replied on 30 January 2006, and invited the complainant to check the webpage of its services responsible for personnel and administration in order to verify when the new online application system would become operational.

On 6 June 2006, the complainant wrote to the Commission in order to complain about the delays in making the new online application system operational. She requested clarification as to the date on which the system would be functioning. On 9 June 2006, the Commission acknowledged receipt of the complainant's application and explained that she would be contacted only if she were selected for an interview.

On 17 January 2007, the complainant sent an e-mail to the Commission expressing her disappointment at not having been contacted for employment until that time. The complainant requested a number of statistics concerning the percentage of officials, temporary agents and contractual agents aged over 50 years recruited by the Commission; the steps taken by the institution to comply with Directive 2000/78; and the steps taken regarding the "inclusivity" of people aged over 50 years in the Commission. On 17 January 2007, the Commission sent the complainant a standard reply in French, English and German, inviting her to check the webpage of its services responsible for personnel and administration and to submit an application through its EU CV Online system.

On 5 February 2007, the complainant repeated her query. On 6 March 2007, the Commission acknowledged receipt of the complainant's request and informed her that she should receive a reply on the issues raised. On 22 March 2007, the Commission replied to the complainant. In its reply, the Commission referred to the complainant's frustration at having received only a standard reply to her query, and expressed its regrets for sending that reply. The Commission also provided all the statistics the complainant had requested.

3.5 The Ombudsman notes that, in reply to the complainant's first employment request of 30 January 2006, the Commission referred her to an upcoming new online application system, the so-called EU CV Online system, which was not operational at the time. The Ombudsman further notes that, in June 2006, since the site was not yet operational, the complainant wrote again to the Commission on 6 June 2006 and resubmitted her application for employment.

The Ombudsman is mindful of the fact that, as the Commission has argued, the setting up of such a complex computer programme may have entailed unexpected delays. The Ombudsman finds it regrettable, however, that, in light of such delays, the Commission had not considered informing potential applicants of the possibility that, until its webpage became operational, they had the possibility to submit applications for employment by other means, such as by postal mail, fax or e-mail. The Ombudsman notes, however, that, on 9 June 2006, having received the complainant's new application, the Commission proceeded to register and review it.

3.6 As regards the handling of the complainant's related correspondence, the Ombudsman considers that the standard reply sent by the Commission on 17 January 2007 to the query made by the complainant on 17 January 2007 did not constitute an adequate response. The Ombudsman notes, however, that, in reply to the complainant's new query of 5 February 2007, the Commission realised its mistake and, in its new letter of 22 March 2007, it provided the information requested, acknowledged the complainant's frustration at having received only a standard reply to her query, and expressed its regrets for sending that reply.

3.7 The Ombudsman points out that, in connection with the complainant's claim that the Commission should provide an explanation for the repeated delays in making the EU CV Online system operational, the institution addressed this matter in its opinion. The Ombudsman notes that the Commission has explained that the timeframe for developing and setting up such a complex application was contingent on a number of different factors, including budget availability, stated priorities, and the acceptance of the application by the functional owner of the project. In view of the nature of the problem, the Ombudsman takes the view that this reply appears to be reasonable.

3.8 In view of the above, the Ombudsman therefore considers that no further inquiries appear to be necessary as regards this aspect of the case.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission as regards the first aspect of the case. In addition, the Ombudsman considers that no further inquiries appear to be necessary as regards the second and third aspects of the case.

The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; OJ 2000 L 303, p. 16.

(2) See note 1.

(3) See Case C-144/04 Mangold [2005] ECR I-9981, paragraph 75.

(4) OJ 2000 C 364, p. 1.

(5) See Case C-344/04 International Air Transport and others [2006] ECR I-403, paragraph 95.

(6) See Case C-411/05 Palacios de la Villa, judgment of 16 October 2007, not yet published in the ECR.

(7) "In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited." Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities; OJ 2004 L 124, p. 1.

(8) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data; OJ 2001 L 8, p. 1.

(9) Point 2.1 of the EDPS' report (page 2).

(10) Conclusion (page 9).