THE BACKGROUND TO THE COMPLAINT

1. The complainant took part in open selection procedure X, organised by the European Parliament, for temporary agents in the budgetary field. By letter of 8 July 2005, Parliament's Directorate-General ('DG') Personnel informed her that she was on the list of suitable candidates and that this list would be valid until 31 December 2007.

2. According to the complainant, this list of selected candidates was not published by Parliament.

3. The complainant also took part in open competition EPSO/AD/, organised by the European Personnel Selection Office ('EPSO'), to establish a reserve list of Swedish-speaking administrators. This competition was completed and the complainant was ranked third on the reserve list.

4. In April 2006, the complainant started to work as a seconded national expert for the Secretariat of the Committee on Budgetary Control of the European Parliament.

5. In January 2007, Parliament recruited Ms J, who was ranked first on the list of successful candidates from selection procedure X, as a temporary agent in the Budget Affairs Directorate of DG Internal Policies.

6. On 18 July 2007, the complainant lodged a complaint under Article 90(2) of the Staff Regulations[1] with Parliament, alleging that a temporary agent could only be recruited by Parliament, if there were no other candidates short-listed from an open competition for officials. She based this allegation on Article 29 of the Staff Regulations, as well as Article 7 of the Internal Rules on the Recruitment of Officials and Other Servants of the European Parliament (the 'Internal Rules'). The complainant asked why Parliament made an exception to this rule in the case of Ms J's recruitment, given that she, the complainant, was available on the reserve list for officials.

7. Parliament acknowledged receipt of this letter. However, at the time the complainant turned to the Ombudsman, it had not provided an answer to this question.

8. On 28 November 2007, the complainant lodged a complaint with the European Ombudsman (complaint 3032/2007/VIK). She alleged that Parliament had breached the Staff Regulations and its Internal Rules by recruiting a temporary agent who had passed selection procedure X, rather than offering the post to her, even though she had passed both the selection procedure X for temporary agents, and open competition EPSO/AD/, for officials. Furthermore, the complainant alleged that the list of successful candidates in selection procedure X should have been published by Parliament. The Ombudsman replied to the complainant on 20 December 2007. Concerning the first allegation, the Ombudsman did not find sufficient grounds for opening an inquiry. The second allegation was inadmissible because the complainant had not yet made the appropriate prior administrative approaches.

9. On 8 January 2008, the complainant turned to the Ombudsman again, asserting that the Ombudsman had misunderstood her earlier complaint. This letter was registered as a new complaint (complaint 502/2008/VIK). In her letter, the complainant took the view that a breach of the Staff Regulations should be a sufficient ground for opening an inquiry. She reiterated her view that temporary agents could only be recruited, if there were no suitable candidates on reserve lists for officials. The complainant stated that the financing of EPSO would amount to a waste of taxpayers' money, if the institutions could finally recruit whomsoever they wished without having regard to the results of open competitions.

10. On a preliminary assessment, following a further careful examination of the complainant's case, the Ombudsman considered that the complainant's interpretation of Article 7 of Parliament's Internal Rules, mentioned in paragraph 6 above, was not without merits. Since Parliament had not replied regarding the substance of the complainant's complaint under Article 90(2) of the Staff Regulations, the Ombudsman decided to open an inquiry.

THE SUBJECT MATTER OF THE INQUIRY

11. In her complaint to the Ombudsman, the complainant made the following allegation:

The European Parliament has breached the Staff Regulations and its Internal Rules by recruiting a temporary agent who had passed open selection procedure X and by not offering a post to her although she had passed both the above selection procedure for temporary agents and open competition EPSO/AD/ for officials.

12. The complainant claimed that the European Parliament should offer her a post.

13. In her observations on Parliament's opinion, the complainant formulated an additional allegation to the effect that Parliament had acted incorrectly by failing to offer a post to a candidate on the reserve list of open competition EPSO/AD/. This matter had not been submitted to Parliament previously. Given that Article 2(4) of his Statute requires a complaint to be preceded by appropriate prior approaches, the Ombudsman considers that he is unable to deal with this further allegation in the present inquiry.

14. In her observations, the complainant further alleged that Parliament only published selection procedure X in order to recruit someone who already worked in the European Parliament, such as Ms J, who ranked first on the list, or Mr E, ranked second. The Ombudsman notes that this further allegation does not appear to have been submitted to Parliament, either. The Ombudsman therefore considers that he is unable to deal with this further allegation in the present inquiry, pursuant to Article 2(4) of his Statute.

THE INQUIRY

15. The Ombudsman asked Parliament for an opinion on this complaint on 25 February 2008.

16. Parliament sent its opinion on 23 May 2008. On 29 May 2008, the Ombudsman forwarded a copy of this opinion to the complainant and invited her to make observations.

17. On 17 June 2008, the complainant sent her observations.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation that the European Parliament breached the Staff Regulations and its Internal Rules by recruiting a temporary agent who had passed open selection procedure X and the relevant claim

Arguments presented to the Ombudsman

18. The complainant submitted that Parliament could only recruit a temporary agent to occupy the post, if there was no suitable official in the European institutions, and no suitable candidate on a reserve list of officials in the European Parliament. She pointed out that her name had been included in the list of suitable candidates following selection procedure X, and also on the reserve list established following open competition EPSO/AD/. The complainant argued that, according to Article 29 of the Staff Regulations, and Article 7 of the Internal Rules, she should have been offered the position of temporary agent in the Budget Affairs Directorate, in preference to the candidate who was actually chosen.

19. In its opinion, Parliament pointed out that open competition EPSO/AD/ for officials, in which the complainant had succeeded, had been organised with a view to establishing a list of Swedish-speaking general administrators. According to Parliament, the purpose of selection procedure X, on the other hand, was to recruit a temporary agent with professional skills in the budgetary field. Parliament concluded that the two procedures were "for the recruitment of staff members with totally different professional profiles". They should, therefore, be considered separately. The mere fact of being on the reserve list of open competition EPSO/AD/ would not confer an automatic right of employment under a different selection procedure.

20. Parliament asserted that it had recruited the person ranked first on the list of suitable candidates following selection procedure X, namely Ms J. The complainant ranked third on this list. Parliament, therefore, strongly denied any allegation of irregularities in connection with that selection procedure.

21. Parliament noted that the complainant had not contested the outcome of selection procedure X.

22. Parliament further submitted that, in its view, Article 29 of the Staff Regulations concerned the recruitment of officials only, and not that of temporary agents.

23. In her observations, the complainant noted that this was the first time that she had seen the order of names on the reserve list of selection procedure X. She asserted that many of the persons on the reserve list of open competition EPSO/AD/ were qualified to work in the budgetary field.

The Ombudsman's assessment

24. Article 1 of the Staff Regulations provides that "these Staff Regulations shall apply to officials of the Communities". The definition of "officials" in Article 1a does not include temporary agents. As the present complaint concerns a post as a temporary agent, the Ombudsman does not consider the Staff Regulations or Article 29 to be relevant in the present case.

25. Article 7 paragraph 2 of the Internal Rules provides as follows: "Without prejudice to the rules applicable to officials, temporary staff shall be recruited in order of ranking from among the candidates short-listed following the open competitions or recruitment procedures provided for in Article 29(2) of the Staff Regulations." Paragraph 3 of this Article then foresees other methods of recruitment to be applied "where no such candidates are available".

26. The recruitment notice for selection procedure X contains a job description of the vacant post. According to this description, Parliament was seeking to recruit a "temporary member of staff responsible for the planning, advisory and coordination tasks set out below within Directorate D - Budget Affairs". The detailed tasks included "providing MEPs on a parliamentary body with written and oral assistance", "liaison in this context with other departments in the Secretariat", "helping to organise the work of the parliamentary body by providing the head of the secretariat with the information needed to draft agendas, notes for the chair, minutes [and] mail" and "carrying out some procedural tasks".

27. These tasks have to be considered in the context of the Policy Department of Budgetary Affairs, where the position was situated. The mission statement of this Department asserts that it "prepares notes, studies, and fact sheets, organises workshops, and ensures the delivery of externally prepared studies. It manages the expertise budgets allocated to the Committees on Budgets and Budgetary Control, providing the funding for studies, workshops, hearings and delegations carried out by these Committees."[2]

28. The argument put forward by Parliament in its opinion appears to be reasonable, namely, that the vacant position required specialist professional skills in the budgetary field. It should further be noted that a list of suitable candidates for the relevant post was drawn up according to the results of selection procedure X, and Parliament recruited the person ranked first on that list. The Ombudsman therefore considers that Parliament's decision to fill the post with one of the candidates who had passed this selection procedure could only be called into question, on the basis of Article 7 of the Internal Rules, if there were "candidates short-listed following the open competitions or recruitment procedures provided for in Article 29(2) of the Staff Regulations" who had the qualifications required for this post.

29. The Ombudsman notes that the complainant takes the view that this was the case and that she, and other persons whose names had been included in the reserve list of open competition EPSO/AD/, would have been able to perform the duties involved in the relevant post.

30. It is true that the job description of open competition EPSO/AD/ also included tasks related to the budget. Under the headline "personnel and resources", it lists budget planning, budget control, internal financial control and work with the Financial Regulation. However, as pointed out by Parliament, the purpose of the open competition was to establish a list of Swedish-speaking general administrators, whereas selection procedure X was designed to recruit a temporary agent with professional skills in the budgetary field. The Ombudsman, therefore, concludes that the recruitment profiles of open competition EPSO/AD/ and selection procedure X were different; the first being general, the second very specific. In these circumstances, and taking due account of the discretion that Community institutions and bodies have in this field, the Ombudsman takes the view that the complainant has not justified her view that Parliament's actions failed to comply with Article 7 of the Internal Rules.

31. No maladministration is, therefore, found as regards the complainant's allegation.

32. It follows that the complainant's claim cannot succeed either.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

On the basis of the evidence supplied to him, the Ombudsman does not find maladministration on the part of the European Parliament.

The complainant and Parliament will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 24 July 2009

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[1] Available at: http://ec.europa.eu/civil_service/docs/toc100_en.pdf

[2] Available at: http://www.ipolnet.ep.parl.union.eu/ipolnet/cms/pid/445