Institution or body concerned: EPSO

Date and time: 7 July 2015, 15:00-17:00

Location: Avenue de Cortenbergh 25, 1049 Brussels, C-25 05/072

The Ombudsman's servicesrepresented by:

• Ms Nastasja Fuxa, Complaints and Inquiries Unit 4
• Ms Tina Nilsson, Head of Complaints and Inquiries Unit 4

EPSO represented by:

• Ms Renata Krizsai, EPSO.05.001
• Ms Sarah Rooney, EPSO

 

1. Introduction and procedural aspects

The Ombudsman's inquiry team introduced themselves and presented the purpose of the own-initiative inquiry and the meeting. The own-initiative inquiry had been opened because the Ombudsman found that the matters covered by the inquiry - which had been brought to her attention in individual complaints - could not be addressed efficiently through individual, complaint-based inquiries. The aim of the present inquiry is thus to assist EPSO in identifying and making possible systemic improvements in the request for review procedure and in its application.

The Ombudsman's inquiry team explained that the meeting had a two-fold purpose: (i) to serve as an inspection of certain documents and to be provided with the information requested by the Ombudsman in her letter opening the inquiry[1] and (ii) to provide an opportunity for both EPSO and the Ombudsman's inquiry team to exchange views and provide clarifications at an early stage.

The Ombudsman's inquiry team outlined the legal framework applicable to Ombudsman inspections, such as that no access may be granted to copies of inspected documents identified by EPSO as confidential[2].

In addition, the Ombudsman's inquiry team informed EPSO that the Ombudsman will publish the report on the inspection on her website, in order to allow anyone interested to read it.

2. The inspection of the file

The inspected documents

The Ombudsman's inquiry team inspected and took copies of the following documents.

(i) The document 'Processing requests for review' setting out EPSO's internal procedure for the handling of requests for review (confidential).

(ii) The document 'Fiche jury - requests for review', that is, the sheet used by the selection board to record its decision on a request for review (confidential).

(iii) The document 'Requests for review - guidelines for drafting replies' (confidential).

(iv) The draft standard letters on which EPSO's replies to requests for review are based.

(v)The document 'Réponses type aux demandes de réexamens' setting out standard wording and reasoning on different matters, based on the relevant case-law, which EPSO uses in drawing up its replies to requests for review.

(vi) The document 'Guide for Competition Selection Boards', dated February 2014 (confidential).

(vii)The Ombudsman's representatives were also provided with the document 'Requests for Review - Statistics for the purposes of the EU Ombudsman's own-initiative inquiry OI/10/2015/NF' setting out the responses on the elements below (confidential).

- The number of candidates who, having used the request for review procedure, decide to lodge an administrative complaint under Article 90(2) Staff Regulations on the same grounds; the number of such administrative complaints in 2014 and in the first quarter of 2015 as compared to 2013.

- The time it has taken, on average, for EPSO to deal with requests for review in 2014 and in the first quarter of 2015.

- How many (and which) court cases were initiated against EPSO, in respect of its handling of requests for review in 2014 and in the first quarter of 2015, as compared to 2013.

(viii) On 25 September 2015, EPSO provided the Ombudsman with the report of the 'working group on requests for review' (confidential).

Information provided by EPSO in relation to the documents that the Ombudsman had asked to inspect:

As regards inspected document (i), the Ombudsman had, in her letter opening the inquiry, asked EPSO to make available for inspection the current version of EPSO's internal rules on the handling of requests for review, including information on recent changes to those rules. EPSO's representatives informed the Ombudsman's inquiry team that the changes that EPSO has implemented since 2014[3] are not reflected in the document 'Processing requests for review'.

As regards inspected document (vi), the Ombudsman had, in her letter opening the inquiry, asked EPSO to make available for inspection its new guide for selection boards. EPSO's representatives informed the Ombudsman's inquiry team that EPSO is still in the process of revising the existing guide for selection boards. The new guide is therefore not yet available. EPSO provided the Ombudsman with a copy of the current guide.

In her letter opening the inquiry, the Ombudsman had also asked EPSO to prepare for inspection information on, and documents possibly drawn up by, EPSO's 'working group on requests for review'. EPSO's representatives explained that its working group on requests for review has created an internal online wiki[4] on requests for review concerning the talent screener stage of competitions. EPSO made a live presentation of the wiki to the Ombudsman's inquiry team. On the basis of the information collected through the wiki, the working group is in the process of drawing up a report with concrete suggestions. EPSO's representatives stated that the report will soon be submitted to EPSO's management for adoption.

EPSO's representatives agreed to send a copy of the report to the Ombudsman, once approved by EPSO's management (inspected document (viii) above).

Confidentiality of the inspected documents

As indicated in the above list (under the heading "The inspected documents"), EPSO's representatives identified some of the inspected documents as confidential, in accordance with Article 5(2) of the European Ombudsman's Implementing Provisions. The copies of the relevant documents were marked ‘confidential’, signed and dated by a representative of EPSO.

3. Exchange of views and clarifications provided by EPSO

Recent procedural changes to EPSO's handling of requests for review

In line with the provisions of the Staff Regulations, selection boards take all substantive decisions on the participation of applicants in open competitions. EPSO, however, organises the competitions and provides support to the selection boards as regards communicating their decisions to candidates. This supporting function of EPSO includes the drafting of letters to candidates, among them replies to requests for review. EPSO itself decides on the procedures it uses in organising competitions and providing support to selection boards.

EPSO's representatives stated that, in late 2012, EPSO introduced a revised procedure for handling requests for review. As from then, the procedure has been managed by EPSO's Legal Affairs sector. In dealing with requests for review, EPSO has relied on case handlers, that is, administrative staff, as well as on legal officers who, as set out below, have had different tasks at different points in time.

Under this procedure, initially two case handlers were in charge of processing requests for review. This included registering the requests, preparing the files for selection board meetings, following up on any re-admissions, as well as drafting the replies and dispatching them via the IT system used to manage competitions. The procedure also involved a separate legal quality check stage, where legal officers had the specific task of countersigning, that is, systematically verifying the accuracy and legal soundness of the replies prepared by the case handlers. During 2013, EPSO did not experience any particular problems or delays in dealing with requests for review on the basis of this procedure.

The situation changed in early 2014, when EPSO experienced a drastic increase in requests for review. EPSO therefore decided, in the first quarter of 2014, to simplify the procedure of handling requests for review and to re-organise the distribution of tasks within the legal team, in order to speed up processing. After the re-organisation, the publication of replies and partially also the follow-up of readmissions (specifically, the IT-related tasks) were shifted to the team's administrative assistant, and the drafting directly to the lawyers. As a consequence, and with the intention of avoiding a bottleneck at this stage in the procedure, the workload was spread more evenly over the whole team, the separate legal review phase was eliminated, and the case handlers could focus on preparing and conducting selection board meetings.

According to EPSO's representatives, the number of requests for review received in 2014 was 100% higher than the benchmark figure from 2013. Concretely, EPSO received 1 084 requests for review in 2014, as compared to 571 requests for review in 2013.

At the end of 2014/beginning of 2015, EPSO decided to involve members of the Director's team in the drafting of replies to requests for review in order to provide support to the legal team.

The re-organisation of tasks between the legal officers and the case handlers of the first quarter of 2014 is of a permanent nature. The provision of support from members of the Director's team is temporary but will be maintained as long as necessary.

Thanks to the procedural changes implemented since 2014, EPSO stated that it is catching up with the backlog of handling requests for review. While, on average, it took EPSO 3.75 months to handle requests for review in 2013, EPSO needed 5.75 months to deal with requests for review in 2014. With regard to the requests for review received in the first half of 2015, EPSO's time for handling requests for reviews has decreased to 3.5 months on average.

On the basis of certain relevant factors, EPSO estimates the number of requests for review that it expects to receive, in order to allocate staff resources accordingly. It is, however, impossible to predict all peaks in the number of requests for review.

The processing of replies to requests for review by EPSO

The selection board meets very soon after the expiry of the deadline for submitting requests for review[5], usually within 2 weeks. At this meeting, the selection board takes a decision on all requests for review, either confirming a candidate's exclusion from a competition or readmitting him/her.

It is the drafting and sending of replies by EPSO, in accordance with the selection board's decisions, that is very time-consuming.

In drafting and sending the replies, EPSO first deals with the requests for review which have obtained a positive decision by the selection board. It does so in order to ensure that the candidates concerned will be readmitted to the competition as quickly as possible so that they can take part in the next step in the competition together will all other candidates.

EPSO is thus virtually always able to reintegrate candidates, who receive a positive reply to their request for review, at a point in time where they can take part in the next stage of the competition together with all other admitted candidates. Under normal circumstances, EPSO does not therefore need to organise tests specifically for readmitted candidates.[6]

The substantive decision on each request for review is thus known at the time of publication of the reserve list. The fact that replies to some requests for review are provided only after publication of the reserve list reflects the fact that EPSO is not always able to draw up and send all negative replies to requests for review before the publication.

The current IT system, which is designed so as to prevent manipulation of competitions, has proven to complicate the processing of requests for review. EPSO has therefore recently decided to overhaul its IT system.

EPSO plans to upload an 'FAQ document' on its website which will set out the most commonly used arguments for requesting a review that are normally not successful.

Information about the request for review procedure provided to candidates who submit a request for review

The Ombudsman, in her letter opening the inquiry, suggested that EPSO include in the acknowledgement of receipt - which is sent to candidates who request a review - the information on the request for review procedure which is set out in the general rules governing open competitions[7]. EPSO's representatives stated that this was a useful suggestion and that EPSO would look into the matter.

Information on appeal possibilities after review

As pointed out by the Ombudsman in her letter opening the inquiry, EPSO does not explicitly set out the appeal possibilities in its replies to requests for review. The Ombudsman's inquiry team explained that it is good administrative practice to provide such information. EPSO's representatives informed the Ombudsman's inquiry team that EPSO intends to include a link to the general rules governing open competitions in its replies. The general rules set out all available appeal possibilities[8].

The content of holding replies

As pointed out by the Ombudsman in her letter opening the inquiry, EPSO has, in the past and in its holding replies concerning requests for review, provided candidates with indicative timeframes for receiving a reply to their request for review. These indicative timeframes were often missed by EPSO. EPSO's representatives informed the Ombudsman's inquiry team that EPSO will no longer set out an indicative timeframe for a reply in its holding replies to candidates, given that this has turned out not to be useful.

With a view to determine how to proceed with the inquiry, the Ombudsman will take into account, and reflect on, all the information her inquiry team obtained at the meeting with EPSO, in particular during the exchange of views (as set out above).

Brussels, 28 September 2015

Ms Nastasja Fuxa
Legal Officer (case handler)

Ms Tina Nilsson
Head of Complaints and Inquiries Unit 4

 

[1] The letter opening the inquiry is available here: http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/60261/html.bookmark

[2] Articles 5(2) and 14(2) of the European Ombudsman's Implementing Provisions.

[3] For an overview of the changes that EPSO has implemented since 2014, see below '3. Exchange of views and clarifications provided by EPSO'.

[4] A 'wiki' is an application, typically web-based, which allows collaborative modification, extension, or deletion of its content and structure. It is a type of content management system that can serve many different purposes, including knowledge management and note taking.

[5] According to EPSO's general rules governing open competitions, a request for review has to be submitted within 10 calendar days from the date when the decision that a candidate wishes to contest is uploaded in his/her EPSO account. OJ 2014 C 60 A, page 1.

[6] The organisation of separate tests for readmitted candidates might, however, be necessary when candidates submit requests for review only at the stage of publication of the reserve list and are necessary in case of annulment of a competition by the Court.

[7] See Point 3.4.3. 'Internal review procedure' of EPSO's general rules governing open competitions, OJ 2014 C 60 A, page 1.

[8] See Point 3.4.4. 'Other forms of contestation' of EPSO's general rules governing open competitions.