The background to the complaint

1. The complainant, a Danish national who is a certified translator and interpreter, participated in a competition for freelance conference interpreters, organised by the Inter-Institutional Test Office for the European Parliament, the European Commission and the Court of Justice ('Test Office').

2. On 23 November 2011, the complainant was invited to sit a written inter-institutional accreditation test ('test'), scheduled to take place in Brussels on 6 January 2012. On the day of the test, the complainant was informed that she would not be allowed to take part in it. The reason given was that she did not have a diploma in conference interpretation, which was one of the criteria required for this competition.

3. The complainant was dissatisfied with this development and, on 9 February 2012, turned to the Ombudsman. In her complaint, she did not contest the Commission's decision to consider her ineligible for the competition in question, but rather complained about the fact that, after having first invited her to the test, the Selection Board informed her at a later stage, that is, on the day the test was to take place, that she would not be allowed to proceed further with the competition. That resulted in a situation in which the complainant had spent in vain a considerable amount of time preparing for this competition and had cancelled some personal and professional commitments.

The subject matter of the inquiry

4. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The complainant alleges that the Test Office failed to inform her in a timely manner about the fact that she would not be eligible to sit the test, held in Brussels on 6 January 2012.

Claim:

The complainant claims that she should receive appropriate compensation in view of: (i) the time and effort she spent preparing for the relevant test; (ii) the employment opportunities foregone in that context; and (iii) the impact on her private life.

The inquiry

5. On 9 February 2012, the complainant lodged the present complaint. On 29 February 2012, the Ombudsman opened an inquiry and asked the Commission to submit an opinion[1]. On 26 April 2012, the Commission submitted its opinion. The Ombudsman subsequently forwarded the Commission's opinion to the complainant and invited her to submit observations, which she did on 21 June 2012. On 29 October 2012, the Ombudsman made a proposal for a friendly solution to the Commission which submitted its reply and further information on 5 December 2012 and 11 January 2013, respectively. The complainant did not submit any observations.

The Ombudsman's analysis and conclusions

Preliminary remarks

6. In its opinion, the Commission referred to the Screening Committee and to the Selection Board of the competition in question. The Commission noted that "it was not organically answerable for inter-institutional Screening Committee decisions". The Commission further clarified that it was the Selection Board that, on the day of the test, took the decision not to allow the complainant to proceed further with the competition. Given that the Selection Board was a committee created specifically for this competition and that the competition was organised by the Test Office, which falls under the responsibility of the Commission, the Ombudsman considers that it is for the Commission to take responsibility for the decisions taken by the Selection Board.

A. Allegation of failure to provide the complainant with timely information and related claim for compensation

Arguments presented to the Ombudsman

7. The complainant argued that, after having received, on 23 November 2011, the invitation for the test to be held on 6 January 2012, she put all her time and energy into preparing for it. As a result, she had to decline certain employment opportunities and adjust her plans, which would have involved travelling outside Europe on an assignment. The fact that the Selection Board failed to inform her in due time of its decision not to allow her to sit the test, resulted in her losing "lots of time and energy for absolutely nothing". In order to prepare for the test, the complainant also decided to cancel a Christmas vacation with her family. The complainant thus claimed that she should receive appropriate compensation in view of: (i) the time and effort spent preparing for the relevant test; (ii) the employment opportunities foregone in that context; and (iii) the impact on her private life.

8. In its opinion, the Commission confirmed that the complainant had indeed been invited to sit the test held in Brussels on 6 January 2012. This invitation was based on a decision taken by the inter-institutional Screening Committee on 7 November 2011. It was the Committee's task to screen the applications of all candidates. The Committee, however, failed to realise that the complainant did not fulfil all the required criteria, as she did not hold a diploma in conference interpretation. In her application, the complainant had specified that she held a master's degree in Translation and Interpretation, a bachelor's degree in Business Languages, as well as a master's degree in Publishing. Therefore, the decision to invite her to sit the test in question was incorrect.

9. It was only on the day of the test that the Selection Board discovered that the complainant did not fulfil all the required conditions and took the decision not to allow the complainant to sit the test in question. Had she been allowed to sit the said test, her results would have, in any event, been declared invalid because she did not fulfil one of the main conditions required.

10. As regards the compensation claimed by the complainant, the Commission stated that it "regrets the clerical error which occurred in this case". However, the institution considered that the high personal and economic loss claimed by the complainant should be mitigated by the following:

• as the eligibility criteria are fully documented throughout the application process, it can legitimately be argued that the responsibility for verifying them lies also with the applicants themselves;
• her travel and accommodation expenses were fully reimbursed by the Commission.
• the complainant could not have suffered the alleged losses as of 22 November 2011, since the invitation to the test was sent on 23 November 2011.

11. According to the Commission, the complainant's claim for compensation was exaggerated and, moreover, should be rejected in light of the fact that she herself was responsible for verifying the relevant admission requirements.

12. In her observations, the complainant pointed out that, after having read the eligibility criteria on the relevant website, she sent an e-mail with copies of her diplomas attached to the Test Office, and was informed that her application would be sent to the Selection Board. She was later invited to sit the test. The complainant maintained that the responsibility for inviting her to the test, though she did not fulfil one of the required conditions, lay with the Commission, not with herself. In her view, she had no reason to believe that, having been invited to sit the test in question, she would ultimately not be allowed to do so.

13. The complainant considered that it was unfair for the Commission, on the one hand, simply to regret the clerical error that had occurred in the case and, on the other hand, to refuse to acknowledge that the error had negative consequences for her. Should the Commission fail to acknowledge its responsibility, this would be tantamount to saying that the decisions made by EU civil servants cannot be trusted.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

14. The Ombudsman noted at the outset that the Commission did not contest that the complainant was not informed in a timely manner that she was not eligible to sit the test in question. The parties, however, disagreed on whether the complainant was entitled to receive compensation other than the reimbursement of her travel expenses.

15. The Ombudsman recalled that the principles of good administration require from the administration that it acknowledges any mistakes made and considers how such mistakes could be rectified. The clearest way to start rectifying a mistake is to apologise for it. In the present case, the Commission merely expressed its regrets for the fact that the ineligibility of the complainant's application was only discovered on the day of the test. At the same time, the Commission suggested that the complainant should have known that she did not fulfil the conditions of eligibility. In these circumstances, the Ombudsman was led to the conclusion that the Commission's mere expression of regret was not sufficient.

16. The complainant did not dispute the Commission's argument that she did not fulfil the conditions of eligibility under the relevant competition. However, she considered that the Commission should provide financial compensation. The Commission's main argument in this regard was that the complainant was responsible for checking whether she fulfilled the eligibility requirements for the competition in question. The Ombudsman did not find this convincing.

17. The Ombudsman recalled that the competition in question was for freelance conference interpreters and that the complainant held diplomas in the fields of translation, interpretation and business languages. It was, therefore, not unreasonable for her to assume that these diplomas could be considered relevant for the field of conference interpreting. The complainant had correctly provided all the information required. Once she had been invited to the test, there was no reason for her to believe that she would then be barred from sitting the test.

18. The Commission pointed out that the complainant's travel expenses had been reimbursed. This was confirmed by the complainant. It would seem, however, that the Commission reimbursed the travel expenses of all applicants invited to sit the test. Therefore, this reimbursement was not necessarily sufficient for rectifying a mistake that was made only with respect to the complainant.

19. In the Ombudsman's view, the fact that the complainant had mistakenly calculated the period of her preparation as of 22 November, and not 23 November 2011, that is, the day she had received the invitation to the test, could not alter the essence of her claim, which was that she should be compensated for the time spent preparing for the test held on 6 January 2012 and for the fact that she had to cancel other personal and professional commitments in this context.

20. The Ombudsman, therefore, considered that, given the circumstances of the present case, the complainant merits an award of an ex gratia payment. Such ex gratia compensation serves the important purpose of recognising that the institution has indeed made a mistake. The payment of ex gratia compensation shows, without creating a precedent, that the institution cares about the complainant and, at the same time, provides a positive response to a specific complaint. This is beneficial, not only to the individual, but also to the institution, insofar as it improves the latter's relations with citizens[2].

21. The Ombudsman noted that the complainant did not specify the amount she considered should be paid to her by the Commission. In this respect, she referred to: (i) the time and effort spent preparing for the relevant test; (ii) the employment opportunities foregone in that context; and (iii) the impact on her private life. The complainant also did not provide any evidence to substantiate any of the three claims above, nor did she quantify the alleged material and non-material damage.

22. In that regard, the Ombudsman considered that a candidate normally cannot expect the EU institutions to compensate him or her for the time and effort spent in preparation for an open competition which he or she subsequently fails. However, the situation is different where, as in this case, a candidate is invited to a sit a test only to be informed, on the day of the test, that he or she is no longer considered eligible to sit that test. Such behaviour is likely to cause, at least, moral prejudice to such a candidate. It should in any event be noted that the reimbursement of travel expenses does not cover the loss of time involved in travelling to and from the test.

23. Therefore, regard being had to the nature of the mistake made by the Commission, and the fact that the complainant did not provide any evidence for the alleged material and non-material damage suffered, the Ombudsman considered that an ex gratia payment of 300 EUR would be a suitable remedy.

24. In accordance with Article 3(5) of his Statute, he made the following proposal for a friendly solution to the Commission:

The Commission could consider making an ex gratia payment of 300 EUR to the complainant.

The arguments presented to the Ombudsman after his friendly solution proposal

25. In its reply to the Ombudsman's proposal, the Commission noted that taking into account the circumstances of the present case it would make an ex gratia payment of 300 EUR to the complainant. On 11 January 2013, it provided the Ombudsman with proof that the said payment was made on 9 January 2013.

26. The Ombudsman invited the complainant to make observations if she so wished, but she did not do so.

The Ombudsman's assessment after his friendly solution proposal

27. The Ombudsman welcomes the Commission's immediate and constructive reaction in the present case. He infers from the fact that the complainant did not submit observations that she is satisfied by the Commission’s action. He therefore considers that the Commission has settled the matter and thereby satisfied the complainant.

B. Conclusions

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

The Commission has settled the matter and thereby satisfied the complainant.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 19 June 2013

---

[1] The present complaint was directed against the Test Office. Given that the Test Office is run under the responsibility of the Commission's Directorate-General 'Interpretation' and, more specifically, the latter's unit dealing with the management of external conference interpreting staff, the Ombudsman considered that the complainant wished to complain against the Commission.

[2] See the decision of the European Ombudsman in case 2904/2005/(TN)FOR, available on the Ombudsman's website.