# Decision of the European Ombudsman closing his inquiry into complaint 10/2011/AN against the European Commission
- Author: European Ombudsman
- Date: 2013-09-03T00:01+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/51390)
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> The complainant was successful in the competition which followed the call for expression of interest EPSO/CAST/RELEX/3/08 (the 'Call'). The purpose of the Call was to set up a database of suitable candidates for recruitment to the Commission's delegations to third countries and delegations to international organisations. In the letter informing the complainant that his name had been placed on the database, EPSO stated that he would be eligible for recruitment by EU institutions, offices, and agencies. Moreover, several candidates from the database were indeed recruited by bodies other than delegations.
>
> The complainant was in the process of being recruited by an EU agency when the Commission informed all the agencies that they could not recruit candidates from the database in question. He considered that this constituted a breach of the principle of equal treatment and turned to the European Ombudsman.
>
> During the inquiry, the Commission stated that it would open the database to EU bodies other than delegations under certain conditions. The complainant eventually found out from another source and informed the Ombudsman that, in fact, the Commission had opened it without any restriction. The Ombudsman thus considered that the Commission had settled the matter.
>
> He, nevertheless, made two further remarks. These were that the Commission should: (i) in the future, provide him with information that is clearly relevant to the outcome of an ongoing inquiry; and (ii) inform all the candidates on the database that it is now open to all EU institutions, offices, and agencies.
>
The background to the complaint
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**1.** In 2008, acting on behalf of the Commission, EPSO published the call for expression of interest EPSO/CAST/RELEX/3/08 (the 'Call'). The purpose of the Call was "*to set up a database of suitable candidates with a* \[view\]*to recruit contract agents*" for the Commission's delegations to third countries and delegations to international organisations.
**2.** The complainant successfully took part in the subsequent competition (the 'Competition') and, in October 2008, EPSO informed him that "\[his\] *name* \[would\] *be placed in the database for eligible candidates for the profile in which* \[he\] *took the tests. Access to* \[that\] *database* \[would\]*be given to European Institutions, Offices and Agencies, who will select and invite for interview candidates who best fit their requirements.*"
**3.** Subsequently, two agencies of the European Union invited the complainant to recruitment interviews for contract agent posts and eventually placed his name on their respective reserve lists. However, the EU agencies in question later informed the complainant that he was "*no longer eligible*" for recruitment for the relevant posts on the grounds that his name was in the CAST RELEX database (the 'Database'). The complainant was also informed that, in order to be recruited, he would have to pass successfully another EPSO competition.
**4.** The complainant contacted the Commission's Directorate-General for External Relations (DG RELEX) by telephone in order to request clarification on the issue. DG RELEX expressed no objections to the complainant's recruitment by an EU agency from the Database and referred him to the Commission's Directorate-General for Human Resources ('DG HR') for further information.
**5.** On 15 December 2010, the complainant wrote to DG HR explaining the situation. The complainant informed DG HR that he had a genuine expectation of being recruited as a contract agent by one of the EU agencies and stated that, according to EPSO's letter informing him that he had passed the Competition, he was entitled to believe that he was eligible to apply for positions within EU agencies. Moreover, the complainant explained that he knew several successful candidates who had been recruited or promoted by EU agencies on the basis of their inclusion in the Database. The complainant thus asked DG HR to find a satisfactory solution to the problem.
**6.** On 20 December 2010, DG HR replied to the complainant and informed him that EU agencies were not allowed to recruit successful candidates from the Database and that they had already been informed accordingly by a note from DG HR of 12 November 2009.
**7.** On 22 December 2010, unsatisfied with the reply, the complainant turned to the European Ombudsman.
The subject matter of the inquiry
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**8.** The Ombudsman opened an inquiry into the following allegation and claim.
##### Allegation:
The European Commission breached the principle of equal treatment by declaring that successful candidates from the Database were not eligible for recruitment by EU agencies.
##### Claim:
The European Commission should restore the complainant's eligibility to be recruited by EU agencies from the Database.
The inquiry
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**9.** On 31 January 2012, the Ombudsman opened an inquiry into the present complaint by requesting the President of the Commission to submit an opinion on the above allegation and claim. Given that the Database was due to expire in October 2011, the Ombudsman asked the Commission to reply by 28 February 2011.
**10.** The Ombudsman also asked the Commission to clarify, among others: (i) why the letter EPSO sent to successful candidates in the Competition, which it organised on behalf on the Commission, stated that they were eligible for recruitment by all EU institutions, offices and agencies despite the fact that the Call specifically stated that they would be eligible to work in delegations; and (ii) whether successful candidates from the Database were actually recruited by EU entities other than delegations.
**11.** Taking account of the involvement of DG RELEX, and, subsequently, the European External Action Service ('EEAS'), in the recruitment of successful candidates from the Database, the Ombudsman informed the High Representative of the Union for Foreign Affairs and Security Policy of the opening of his inquiry. He also informed EPSO.
**12.** On 2 February 2011, the complainant sent further correspondence to the Ombudsman, which he forwarded to the Commission on 10 February 2013.
**13.** On 28 February, 31 March and 30 April 2011, the Commission requested extensions of the deadline to submit its opinion. The Commission eventually submitted its opinion on 8 June 2011. The opinion was forwarded to the complainant with an invitation to submit observations, which he did on 21 July 2011.
**14.** On 27 September 2011 and 24 February 2012, the Ombudsman addressed further questions to the Commission concerning the opening of the Database to bodies other than the delegations. The Commission replied on 29 November and 13 December 2011, and on 2 May 2012, respectively. The complainant submitted comments on the Commission's further replies on 25 January and 27 July 2012, respectively.
**15.** In the meantime, on 21 May 2012, the complainant requested access to the Commission's documents concerning the successful candidates recruited from the Database for posts without an international dimension. On 22 June and 27 July 2012, the complainant forwarded to the Ombudsman copies of the Commission's initial and confirmatory reply to that request[\[1\]](#_ftn1 ""){#_ftnref1}.
**16.** On 10 October 2012, the complainant made a new request for access to the Commission's documents related to the successful candidates recruited from the Database and provided the Ombudsman with a copy. On 30 November 2012, he submitted a copy of his confirmatory application to the Ombudsman.
**17.** On 4 and 22 February 2013, the complainant sent additional information to the Ombudsman. On 16 July 2013, the complainant provided the Ombudsman's Office with new information by telephone.
The Ombudsman's analysis and conclusions
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### A. Alleged violation of the principle of equal treatment. Claim that the European Commission should restore the complainant's eligibility to be recruited by EU agencies from the Database
#### Arguments presented to the Ombudsman
**18.** In his **complaint**, the complainant recalled that EPSO's letter informed him that he had been successful in the Competition and explicitly stated that he would be eligible for recruitment by all EU institutions, bodies and agencies. The complainant was very surprised that DG HR's policy had abruptly changed two years after the Database had been established. During that time DG HR and DG RELEX allowed a number of successful candidates, placed in the Database, to be recruited by EU agencies. He felt that this amounted to a breach of the principle of equal treatment of successful candidates. Moreover, the complainant emphasised that, during the two years in question, he had invested a significant amount of time and effort to finding a post with an EU agency, in the sincere belief that he was eligible to be recruited.
**19.** In its **opinion** the Commission highlighted that the Call specifically stated that successful candidates would be available for recruitment by delegations. The aim of the Call was to create a reserve list for delegations in third countries. All candidates were explicitly required to choose between four and eight third countries where they would be willing to work if recruited. This included at least two destinations considered "*difficult* " and two others considered "*very difficult*". Candidates were thus aware of the nature and purpose of the competition they took part in. EPSO's error in its letter, which is a standard one sent to all successful candidates in all competitions, could not extend the scope of eligibility of the Call to other bodies, nor create legitimate expectations for the successful candidates.
**20.** The Commission acknowledged, nonetheless, that, although EU agencies were not entitled to have access to the Database, in practice they had. In the interest of the service, some successful candidates in the Database were recruited by EU agencies and other Commission Directorates-General, by way of derogation, for short-term contracts, at the end of which they would again become available for DG RELEX's needs. However, the Commission announced that, together with the EEAS, it would explore the possibility of opening the Database to other Commission services and EU agencies, given that the Database was due to expire at the end of 2011 and other specialised competitions would be organised regularly thereafter.
**21.** In his **observations**, the complainant pointed out that successful candidates did not necessarily have legal backgrounds and thus were not in a position to question EPSO's statement that they were eligible for recruitment by other EU bodies in addition to the delegations. Even EU agencies were led to believe that the Database was open to them. This was clear from the fact that two EU agencies invited the complainant for recruitment interviews on the basis of his inclusion in the Database, and even placed his name on their respective reserve lists.
**22.** Moreover, the complainant stated that, following the opening of the Ombudsman's inquiry into the present complaint, he was once again invited to recruitment interviews by the same EU agencies on the basis of his inclusion in the Database. This proved that his situation *vis-à-vis* recruitment by the EU agencies was ambiguous, switching from ineligibility (the Call) to eligibility (EPSO's letter), back to ineligibility (the Commission's refusal to allow the EU agencies to recruit) and, finally, to eligibility once again (EU agencies contacting him).
**23.** The Ombudsman's **requests for further information** essentially sought to clarify whether the Database would be opened to other EU bodies and under what conditions. The Ombudsman also asked the Commission to explain for which concrete posts and by which EU entities, other than delegations or the EEAS, successful candidates included in the Database had been recruited in the past.
**24.** In its **replies to these requests**, the Commission clarified that, as of the beginning of 2012, the Database was opened to all the Commission's Directorates-General, as well as to all the EU agencies and other EU institutions, provided that: (i) the candidate was available; (ii) the position to be filled had an international dimension, given the specificity of the selection; and (iii) prior agreement had been granted by the Commission's Directorate-General for Development and Cooperation EuropeAid ('DG DEVCO') and the EEAS. The Commission submitted that condition (ii) was implicit in the Call and, therefore, it could not lead to discrimination because all the candidates were aware of it.
**25.** The Commission also stated that it did not hold a record of all the derogations granted in the past to allow successful candidates to be recruited from the Database by bodies other than delegations. It would have to conduct long and expensive research in order to ascertain and inform the Ombudsman which successful candidates were recruited from the Database, who they were recruited by and for what type of posts. The Commission did not consider such research a priority.
**26.** In his **comments on the Commission's further replies**, the complainant welcomed its willingness to open the Database to other EU institutions and services. However, he remained convinced that the condition that the post in question should have an international dimension was discriminatory, given that some successful candidates from the Database had already been recruited without the need to fulfil such a condition. On the other hand, this condition substantially reduced the chances that the remaining successful candidates would be recruited, given that very few positions outside the delegations had an international dimension.
**27.** In the context of the complainant's **request for access to documents** related to the successful candidates recruited from the Database, the Commission informed him that none of the contracts offered to them mentioned that the post they filled did not have an international dimension. The Commission also stated that, since the recruitment file is held by the body or EU agency that recruits a candidate from the Database, the Commission's services do not keep any record of communication with such a body or EU agency in this regard.
**28.** On 17 January 2013, the complainant found out from an unknown source that the Database had been opened to all EU institutions, bodies and agencies, as well as to all the Commission's services, without any restrictions. He made enquires with the Commission in that regard and the Commission confirmed that "*from the beginning of September* \[2012\] *and in order to compensate* \[for\] *the lack of available candidates in other selection procedures* ", the Database was fully open, without the need for the post to be filled to have an "*international dimension*". It invited the complainant to send a spontaneous application to any service he might be interested in.
**29.** On 16 July 2013, the complainant informed the Ombudsman's services by telephone that he had subsequently applied for several posts, but had not yet been recruited.
#### The Ombudsman's assessment
**30.** The Ombudsman notes, at the outset, that this inquiry brought forward the delicate balance that needs to be ensured, in cases where two important principles conflict.
**31.** The first one is the principle of equal treatment, which in the present context required that all successful candidates in the Competition be equally eligible for recruitment by all potential employers. The fact that some of the successful candidates from the Database were allowed to be recruited by a wider range of employers, while others were denied this opportunity, appeared to fall short of the requirements of this principle, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (the 'Charter').
**32.** The second principle is that of fairness, enshrined in Article 41 of the Charter and Article 11 of the European Code of Good Administrative Behaviour. In the present case, this principle required that, once EPSO's erroneous letter and the Commission's subsequent derogations led successful candidates to believe that they were eligible for recruitment by more EU bodies than the Call envisaged, either EPSO or the Commission had to provide those successful candidates with reasonable and timely explanations why this would not be so.
**33.** The note sent by DG HR to the EU agencies in 2009 informing them that they were not allowed to recruit from the Database was inexact, since such recruitment had already taken place. Moreover, no such note or other type of information was ever sent to the successful candidates who had not yet been recruited and who, in light of EPSO's letter, reasonably considered themselves eligible for employment by any EU body. The complainant, who was concretely and directly affected by the inconsistencies that have occurred in this case, did not receive a satisfactory explanation at any time.
**34.** Indeed, although the Commission explained, in its opinion, that exceptions to the rule of recruitment by delegations had been allowed in the interest of the service, it never fully confirmed or denied the complainant's statements that some successful candidates had been recruited for posts without an international dimension. Moreover, the very fact that the Commission did not hold any trace of the derogations it granted to some of those successful candidates makes it impossible to verify to what extent the said recruitment was indeed exceptional and carried out for a proper reason related to the interest of the service.
**35.** In any event, the Ombudsman takes note of the fact that, according to the complainant's information originating from the Commission, successful candidates placed in the Database, including himself, are now eligible for recruitment by any EU institution, agency or service without the need for the post to be filled to have an international dimension. Therefore, the Commission has settled the complainant's claim and further inquiries by the Ombudsman are not justified.
**36.** The Ombudsman regrets, however, that the Commission did not inform him directly of the above development. This constituted a most relevant piece of information for the Ombudsman's ongoing inquiry. The purpose of this inquiry is to ascertain precisely if, and under what conditions, the Database could be opened up to all EU bodies. In addition to that, the Ombudsman considers that the Commission ought to have informed, directly or though EPSO, all the successful candidates in the Database of this new development, in order to grant them equal opportunities to find appropriate vacancies for their interests and profile. In this regard, the Ombudsman underlines that the complainant became aware of this change through other sources, in the absence of which he might have never known that the eligibility for which he had been struggling had been restored. It may not be ruled out that other successful candidates in the Database were, or still are, in the same situation.
**37.** In this regard, the Ombudsman will make two further remarks below.
### B. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion and further remarks:
**The Commission has settled the complainant's claim.**
Further remarks
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{#FR42/2013}
**The Ombudsman trusts that, in the future, the Commission will ensure that information which is clearly relevant in the context of an Ombudsman inquiry is brought to his attention without delay through the appropriate channels, thus enabling him to take reasoned decisions within a reasonable time.**
{#FR43/2013}
**In order to ensure equal and fair treatment of all the successful candidates in the Database, the Commission should, directly or through EPSO, inform all those candidates, if it has not done so already, that the Database is now open and that they are eligible for recruitment by EU bodies other than delegations without the need for the post concerned to have an international dimension.**
The complainant and the Commission will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 27 August 2013
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[\[1\]](#_ftnref1 ""){#_ftn1} On 27 July 2012, the complainant also lodged a new complaint against the Commission concerning the handling of his request for access to documents related to the present case. The new complaint was registered as 1947/2012/AN. It was closed on 19 October 2012.