The background to the complaint

1. The complaint to the European Ombudsman concerns the manner in which the European Personnel Selection Office ('EPSO') handles requests for information and requests for review in open competitions, and, specifically, the way it handled such requests in the context of Open Competition EPSO/AST/111/10.

2. The complainant participated in the above-mentioned competition and, in early 2011, obtained a pass mark in the admission tests. However, on 7 April 2011, EPSO informed him that he had not been admitted to the assessment exercises because he ostensibly did not fulfil the conditions set out in the notice of competition in respect of education and professional experience. The complainant submitted a request for review on 15 April 2011. EPSO informed him that he would receive a reply "as soon as possible" but that "due to the huge number of applicants" and the "number of mails that [EPSO] might be receiving", it might take "longer than usual". On 29 April 2011, the complainant was informed that he would receive a reply "in May", which he did not. On 1 June 2011, the complainant wrote to EPSO, which replied on 6 June 2011, stating that he had indeed been admitted to the assessment phase.

3. On 9 June 2011, the complainant received an invitation to sit the assessment exercises six days later, on 15 June 2011. Following the assessment exercises, EPSO informed the complainant, on 8 August 2011, that he had not been placed on the reserve list because his score for the competency segment entitled 'Delivering quality and results' was 2/10, while the pass mark was 3/10.

4. On 17 August 2011, the complainant submitted a request for review to EPSO which responded that he would receive an answer "in due course" and "as soon as possible" but that it might take "longer than usual". On 7 September 2011, the complainant sent a reminder to EPSO about the request he had made to view the test papers. He received the reply that he would obtain an answer "as soon as possible". On 14 September 2011, the complainant asked EPSO to indicate a date by which he would be informed about the outcome of his request for review. EPSO replied that it could not provide such indications but that he would receive a reply "as soon as possible". At the time he submitted his complaint to the Ombudsman, the complainant had still not been granted access to his test papers and was still awaiting the outcome of the request for review of his assessment results.

The subject matter of the inquiry

5. In his complaint, the complainant alleged that:

(1) EPSO fails to provide a precise date on which it will reply to requests for information or requests for review;

(2) EPSO takes too long to reply to requests in connection with competition results;

(3) EPSO fails to organise competitions so that requests for information and requests for review can be dealt with in a timely manner; and

(4) EPSO failed to inform the complainant at least three weeks in advance of the date of his assessment exercises, which put him in an unfair situation compared to other candidates.

6. The complainant claimed that EPSO should:

(1) immediately inform the candidates in the competition concerned what date they will receive a reply to their requests for review;

(2) make sure that all candidates in competitions are informed well in advance about the date for their assessment exercises;

(3) always provide a precise date when it will reply to requests for information and requests for review, and reply on that date at the latest; and

(4) organise competitions in such a way as to allow sufficient time to deal swiftly and appropriately with requests for information and requests for review.

The inquiry

7. The Ombudsman asked EPSO to submit an opinion on the complaint, which it did on 16 February 2012. The opinion was forwarded to the complainant who submitted his observations on 1 November 2012.

The Ombudsman's analysis and conclusions

Preliminary remark

8. The Ombudsman notes that, in his observations on EPSO's opinion, the complainant stated that, in his view, the three main errors committed in relation to his participation in Open Competition EPSO/AST/111/10 were that (i) he was excluded from the competition at the admission stage, (ii) he was not provided with clear reasons as to why he was excluded, and (iii) he was informed too late that he had been readmitted to the competition. The Ombudsman points out in this regard that the alleged errors (i) and (ii) were not put forward in the original complaint and they are thus not covered by the present inquiry.

A. Alleged failure to provide a precise date for its reply to requests for information or review

Arguments presented to the Ombudsman

9. According to the complainant, when indicating by when it will reply to requests made to it, EPSO either gives only a standard answer, such as "as soon as possible", or a very vague time frame, such as "in May" or "by the end of this month", which it anyhow does not adhere to.

10. In its opinion to the Ombudsman, EPSO stated that, according to the Guide to open competitions, every candidate is entitled to request a review of a selection board's decision if he or he believes that it has failed to abide by the provisions governing its proceedings. The Guide foresees that a reply will be given "as swiftly as possible". According to EPSO, "[i]n order not to create undue expectations with candidates, there is no fixed deadline indicated". The time frame for dealing with requests for review is influenced by a multitude of factors, some of which are outside EPSO's control.

11. EPSO pointed out that requests for review that fall within the remit of the selection board need to be handled by the selection board itself. In respect of such requests, EPSO is thus completely dependent upon the agenda of the selection board members. Moreover, the number of requests for review is dependent on the stage of the competition and the number of candidates included in that stage. Thus, depending on the selection procedure in question, every selection board has a different time frame to handle requests.

12. EPSO however stated that, when it realises that the selection board will have difficulties in dealing with all requests within a reasonable time, it informs candidates that they will have to wait longer for their reply, as it did with regard to the complainant.

13. EPSO also pointed out that it takes very seriously all requests from candidates, be they requests for information or requests for review. In respect of requests for information that fall within its remit, EPSO applies the Code of Good Administrative Behaviour and strives to reply within the 15 working days foreseen therein.

The Ombudsman's assessment

14. The Ombudsman understands the eagerness of candidates to obtain answers to requests for review and requests for information. However, the Ombudsman finds reasonable EPSO's explanation that the uncertain nature of the factors involved make it very difficult for EPSO to give a precise indication of the date on which it will provide a reply to a particular request. The Ombudsman therefore finds no maladministration as regards this aspect of the complaint.

B. Allegation that EPSO takes too long to reply to requests for review

Arguments presented to the Ombudsman

15. According to the complainant, in Open Competition EPSO/AST/111/10, the assessment phase started long before the requests for review had been dealt with. Similarly, the reserve list was drawn up long before unsuccessful candidates had been granted access to their test papers, let alone informed of the outcome of their requests for review.

16. EPSO stated that, due to the large number of requests in connection with competition results, priority is given to those requests which are "formal, justified and where the reply might have an impact on the final outcome for the candidates"[1]. All other requests are dealt with as quickly as possible but if a long waiting time is expected, candidates are usually informed about this.

17. EPSO emphasised that, in order for the selection board to have at its disposal all possible corrective measures, all decisions on requests for review are taken before the end of the ensuing stage of the selection procedure. The most far-reaching corrective measure is readmission of a candidate, which was the corrective measure adopted with regard to the complainant.

18. EPSO acknowledged that it was only on 28 October 2011 that the decision on the complainant's request for review of the decision not to place him on the reserve list was published in his EPSO account. According to EPSO, this was due both to the considerable number of requests and to the fact that the permanent members of the selection board had full agendas. However, at that stage of the procedure, the most far-reaching corrective measure the selection board could have taken was to place, a posteriori, a candidate on the reserve list. This possibility remained open and the time frame was therefore less exigent at that stage.

19. In his observations on EPSO's opinion, the complainant argued that it is important for candidates to be informed as soon as possible about whether or not they have been admitted to a further stage in a competition, given that they will base other work-related decisions and actions on that information. In addition, if a candidate is placed on a reserve list at a later stage, available positions in the EU institutions will already have been filled by candidates whose names appeared on the reserve list on the day it was initially drawn up.

The Ombudsman's assessment

20. As a matter of good administrative practice, the Ombudsman considers that EPSO should always make an effort to reply to any kind of request without delay and as swiftly as possible. At the same time, when uncertain factors may lead to a situation where requests have to be prioritised, the Ombudsman finds it reasonable for EPSO to give priority to requests the reply to which will affect to a greater extent the rights and interests of candidates.

21. In respect of requests for review prior to a subsequent round of testing or to the drawing up of the reserve list, the Ombudsman considers that the question whether EPSO takes too long to reply has to be determined on the basis of whether the reply, at the point in time when it is provided, is effective in safeguarding the rights and interests of candidates. In other words, in order to answer this question, it must be determined whether a positive reply will allow the candidate to be readmitted to the competition in such a way as to ensure fairness or to be placed on the reserve list of successful candidates. In this regard, the Ombudsman notes EPSO's statement that all decisions on requests for review are taken before the end of the ensuing stage of the selection procedure, thereby allowing candidates to be readmitted where appropriate. This statement has not been questioned by the complainant, and the Ombudsman finds no reason to do so. The Ombudsman nevertheless considers it useful to recognise that candidates are justifiably anxious to know whether they have made it to the next phase of a selection procedure. Such eagerness to know if they have to take a test is understandable, given that most candidates will have to make arrangements on a professional and private level in order to attend a test.

22. The Ombudsman agrees that the obligation to reply swiftly to a request for review also applies at the final stage of a selection procedure, that is, when the next stage of the procedure is the drawing up of a reserve list. He acknowledges, however, that at this stage time is not a determining factor in safeguarding the rights and interests of the candidates.

23. Since the complainant has not put forward more detailed arguments concerning his allegation that EPSO systematically replies late to requests for review, the Ombudsman finds that no further inquires are justified into the issue of the manner in which EPSO generally handles requests for review. The specific issue of the manner in which EPSO handled the complainant's request for review will be further analysed in section D below.

C. Alleged failure to organise competitions so that requests can be dealt with in a timely manner

Arguments presented to the Ombudsman

24. The complainant argued that EPSO sets the schedule for competitions and the work of selection boards in such a way that requests for review cannot be treated in a timely manner. He argued that such requests are squeezed into a tight schedule and are given low priority. He stated that, once the deadline for applications passes, EPSO knows how many candidates have applied for a particular competition. It should then draw up a schedule that takes into consideration the probable percentage of candidates who may request a review or submit an appeal at each stage of the competition. In the complainant's view, EPSO does not appear to have done so in Open Competition EPSO/AST/111/10.

25. EPSO stated in its opinion that, in order to safeguard the rights of candidates and to allow the selection board to have at its disposal all possible corrective measures, competitions are organised in such a way so as to allow the selection board to handle requests for review before the end of the ensuing stage in the selection procedure.. EPSO stated that selection boards are urged to take these considerations into account when dealing with requests for review.

The Ombudsman's assessment

26. Given his findings in respect of the complainant's first two allegations (sections A and B above), the Ombudsman considers that the complainant has not provided him with any arguments or evidence to call into question the way in which competitions are organised in general. The Ombudsman therefore finds that no further inquires into this allegation are justified.

D. Alleged failure to inform the complainant three weeks in advance of the date of the assessment exercises

Arguments presented to the Ombudsman

27. The complainant argued that EPSO had announced on Facebook that candidates would be informed at least three weeks in advance of the date of the assessment exercises. However, he was informed less than a week in advance. He therefore considered that he had been treated unfairly in comparison to other candidates who were informed four weeks in advance. Accordingly, the other candidates had plenty of time to take advantage of training and preparation options, such as training courses organised by the Commission staff unions and other organisations, some of which were only accessible to candidates who had been invited to the assessment phase. The complainant argued that these options were denied to him due to the extremely late invitation. He therefore attributes his low score in the competency segment entitled 'Delivering quality and results' to lack of preparation time, and adds that it does not reflect his real competency in this area.

28. EPSO stated that the last day for introducing a request for review of a decision not to admit a candidate to Open Competition EPSO/AST/111/10 was 18 April 2011. Due to the Easter holiday period and the large number of requests for review, as well as the practical implications of readmitting a candidate, the complainant and two other candidates were informed on 6 June 2011 of the Selection Board's decision to readmit them. On 9 June 2011, they were sent an invitation to attend the assessment centre session on 15 June 2011, which was the last day of the assessment exercises. The complainant and the two other readmitted candidates were thus given as much time as possible under the specific circumstances. The fact that the complainant was not given the average two weeks' notice was due to him being in a specific situation, that is, that he had benefitted from a corrective measure decided by the Selection Board. The aim is always, EPSO stated, to readmit the candidate to the ongoing competition in the best possible way, without incurring disproportionately adverse consequences for the duration of the whole competition and without disrupting the overall planning of the assessment centre facilities.

29. EPSO however argued that, due to the shift from knowledge-based testing to competency-based testing, preparation time has become less crucial, since there is no studying involved. Competencies can be acquired over time but cannot be "exercised" in a two-week interval. According to EPSO, "the time frame given is not decisive when it comes to being successful or not in the assessment centre sessions".

30. In his observations on EPSO's opinion, the complainant stated that it may be correct to state that the average time between the invitation to the assessment centre phase of competitions and the actual date of the exercises is two weeks. However, in respect of Open Competition EPSO/AST/111/10, the other candidates were informed four weeks in advance. He added that he knows of one candidate who was informed seven weeks in advance. Given that the complainant was only informed five days in advance, he considered that he had been unfairly treated in comparison to the other candidates. In addition, only two of the five days were working days, which meant that he had far too little time to obtain an appointment with a professional coach who could have enabled him to practice the structured interview. He also had great difficulties obtaining from a previous employer documents which were required as proof of professional experience. Moreover, the complainant argued that he had to pay an excessive price for his hotel room.

31. The complainant further outlined why he considers that time matters when preparing for the assessment centre exercises. Candidates have to get used to a different keyboard, review Microsoft Word functions which they do not often use in their daily work, prepare for the structured interview, book a hotel room, take time off work, gather supporting documents and become acquainted with in-tray exercises such as practicing time management. Whereas other candidates had time to practice, he did not, and he failed the in-tray test by a single point.

32. The complainant had the impression that his late invitation was due to lack of planning by EPSO. He noted that the EU institutions were closed on 2 and 3 June. However, with a slight effort and better planning, EPSO could easily have informed him on 1 June 2011 about his readmission to the competition.

The Ombudsman's assessment

33. As noted in paragraph 21 above, in order to comply with principles of good administration, the Ombudsman considers that EPSO has to respond to requests for review in a way that is effective in safeguarding the rights and interests of candidates. This means that a positive reply to a request for review, such as the one which the complainant received, has to allow the candidate to be readmitted to the competition in such a way as to ensure fairness.

34. The Ombudsman is mindful of the need for EPSO to readmit a candidate to an ongoing competition without incurring disproportionately adverse consequences for the duration of the whole competition and without disrupting the overall planning of the assessment centre facilities.

35. The Ombudsman also notes EPSO's statement that the competencies tested in the assessment exercises are of such a nature that they have to be acquired over time and cannot be "exercised" in an interval of a couple of weeks. The Ombudsman agrees in principle with this assertion, which is consistent with the nature of the competency tests.

36. However, the Ombudsman underlines, there are a number of practicalities that any candidate facing any type of test has to deal with in order to be able to attend a test on a particular date. These include organising their personal lives (for example, looking after children and other family members), organising their professional lives (requesting leave from work, reorganising meetings and so on), making travel arrangements and reserving appropriate accommodation. If a reasonable period of time to deal with such practicalities is not given, some candidates will either not be able to take the test or will be unduly stressed when sitting it. The Ombudsman considers that two weeks constitutes a reasonable period of time to give candidates. Accordingly, by not informing the complainant in the present case of the date of his assessment exercises at least two weeks in advance, EPSO committed an instance of maladministration. The Ombudsman will make a critical remark in this regard.

37. The Ombudsman notes that, by giving a candidate too little time to make practical arrangements before the assessment exercises, EPSO could irremediably prejudice that candidate's rights and interests. Even if, in the present case, the unreasonably short time frame does not appear to have irremediably prejudiced the complainant's rights and interests, the Ombudsman considers that it would be appropriate for EPSO to draw up general guidelines advising selection boards to take their decisions on requests for review in such a manner as to allow EPSO to inform candidates of the date of their assessment exercises at least two weeks in advance. The Ombudsman will make a further remark in this regard.

E. Claims

38. Given the Ombudsman's conclusions in respect of the complainant's allegations, there are no grounds further to pursue the complainant's first, third and fourth claims. The Ombudsman will address the complainant's second claim in his further remark below.

F. Conclusions

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

There has been no maladministration in relation to the complainant's first allegation. No further inquires into the complainant's second and third allegations are justified.

Critical remark:

By not informing the complainant in the present case of the date of his assessment exercises at least two weeks in advance, EPSO committed an instance of maladministration.

The complainant and EPSO will be informed of this decision.

Further remark

It would be appropriate for EPSO to draw up general guidelines advising selection boards to take their decisions on requests for review in such a manner as to allow EPSO to inform candidates of the date of their assessment exercises at least two weeks in advance.

 

P. Nikiforos Diamandouros

Strasbourg, 14 February 2013

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[1] Given that the question whether a request is "justified" can only be determined after actually having dealt with it, the Ombudsman understands this statement to mean that priority is given to dealing with requests that are formal, reasoned and where the reply might have an impact on the final outcome for the candidate.