Made in accordance with Article 4(1) of the Statute of the European Ombudsman^[1]

Background to the complaint

1. The complainant is a native Spanish speaker, who took part in a selection procedure that was organised by the European Personnel Selection Office (EPSO) for recruiting EU staff in the field of financial rules applicable to the EU budget.[2]

2. Candidates had to designate a first language, in which they would take the initial pre-selection multiple choice tests, and a second language, in which they were to complete a ‘talent screener’ as part of their application. The choice of second language was limited to English, French, German and Italian.

3. Candidates that successfully passed the initial stage of the selection procedure and the subsequent ‘talent screener’ stage were invited to the tests of the ‘assessment centre’ stage,[3] which they had to take in the language they had designated as their second language.

4. The complainant successfully passed the initial stages and was invited to sit the assessment centre tests.

5. In January 2021, EPSO informed the complainant that his score in the assessment centre tests were not sufficient to place him on the list of successful candidates who would be eligible for recruitment by EU institutions and bodies (‘reserve list’).

6. The complainant made an administrative complaint to EPSO against the Selection Board’s decision not to place him on the reserve list.[4] In his administrative complaint, he set out several concerns about how EPSO organised and conducted the selection procedure, including about the selection procedure’s language regime. He argued that, by allowing candidates to sit the assessment centre in only the four designated languages, EPSO had discriminated against candidates whose mother tongue was not one of those languages.

7. On 13 September 2021, EPSO rejected the administrative complaint. Regarding the language regime, EPSO considered that the complainant should have lodged a complaint against the notice of competition, which set out the language requirements, when it was published. EPSO stated that a candidate who is excluded from a selection procedure could still challenge the provisions in a notice of competition if they proved a close connection between those provisions and the challenged decision.^[5] It added that the decision not to place him on the reserve list did not refer to the language regime for the tests, and that he had failed to demonstrate a sufficiently close connection between the language regime and his performance in the assessment centre. EPSO thus rejected this aspect of his complaint as inadmissible.

8. Dissatisfied with EPSO’s reply, the complainant turned to the Ombudsman in September 2021.

9. On 24 September 2021, the complainant wrote to EPSO, asking how a recent judgment of the EU General Court[6], annulling the notice of competition due to the language regime chosen, might impact his complaint. The complainant considered that he should be allowed to sit new assessment centre tests.

10. The Ombudsman opened an inquiry and asked EPSO to reply to the complainant’s letter of 24 September 2021.

11. EPSO replied to the complainant, rejecting his request. EPSO considered that the complainant had already exhausted his rights of appeal^[7]  and that the ruling of the Court did not alter his legal situation.

The Ombudsman's proposal for a solution

12. The Ombudsman noted that before EPSO’s reply to the administrative complaint, the General Court had held the language regime of the selection procedure to be unlawful,[8] and found that EPSO’s reply to the administrative complaint regarding the language regime was not in line with a recent judgment of the General Court (‘the Correia de Paiva judgement’).[9]

13. The General Court found that limiting the choice of the second language of the selection procedure affects the ability of candidates to express themselves orally or in writing. The likelihood of getting better marks in the tests is higher if these tests are conducted in the candidate’s first language, or in a language in which they also have a high or a native speaker level.[10] Consequently, the court concluded that there was inevitably and necessarily a link between the language regime in the notice of competition and the applicant’s test results. 

14. The Ombudsman found that the same reasoning applied in the complainant’s case, and that the fact that he was obliged to sit the assessment centre tests in only the four designated languages inevitably affected his results in the tests. The Ombudsman therefore disagreed with EPSO’s reasoning, in the reply to the administrative complaint, for rejecting the complainant’s claim regarding the language regime.

15. The Ombudsman proposed as a solution that EPSO reconsider the complainant’s administrative complaint. The Ombudsman suggested that, in doing so, EPSO take account of the recent EU case-law and take the necessary measures to address the negative impact that the language regime set out in the notice of competition had on the complainant’s status as a candidate.[11]

16. EPSO rejected the Ombudsman’s proposal for a solution. It contended that, under the Staff Regulations, it could not itself revise a decision taken in reply to an administrative complaint;  such decisions could only be challenged before the Court of Justice. The complainant failed to do so despite having knowledge in due time of the ruling of the General Court annulling the notice of competition. EPSO argued that, as the complainant had not appealed the decision on his administrative complaint before the Court, the decision had become final and could no longer be altered.^[12] EPSO also stated that, in accordance with EU case-law, an act adversely affecting a candidate may be subject to only one administrative complaint.^[13]

17. EPSO further argued that revising the decision would breach the principle of legal certainty, according to which situations and legal relationships governed by EU law should remain foreseeable. A consequence of this is that institutions may not alter measures which they have adopted and which affect the legal and factual situation of persons.^[14]

18. EPSO referred to EU case-law^[15] and argued that a judgment annulling a notice of competition does not apply to other decisions which were affected by the same issues that were deemed illegal in the judgement if those decisions had not been challenged before the Court. A judgment of the Court in this regard only applies to the parties to the proceedings, and EPSO is under no obligation to re-examine, at the request of other persons, identical or similar decisions.

19. The solution proposal and EPSO’s reply to the proposal were provided to the complainant. The complainant rejected the reasoning provided by EPSO.

The Ombudsman's assessment after the proposal for a solution

20. According to the Treaty on the Functioning of the EU[16] and the Statute of the European Ombudsman[17], the Ombudsman’s role is to identify and eliminate instances of maladministration by conducting inquiries into the activities of the EU’s institutions, bodies, offices or agencies. This includes inquiring into whether decisions of EU bodies are legally sound and their content complies with the law.[18] In cases where the Ombudsman identifies issues, she should make appropriate proposals for solutions, suggestions and recommendations in order for the EU body to address the maladministration identified.

21. The Ombudsman clearly set out in her proposal for a solution the reasons why the position EPSO adopted in its reply to the administrative complaint was wrong in law. In particular, the Ombudsman found that EPSO’s reply to the administrative complaint was not in line with the Correia de Paiva judgement. Since the Ombudsman sent the solution proposal, the judgement was confirmed, following an appeal.[19]

22. In its reply to the solution proposal, EPSO did not address the Ombudsman’s finding, but merely rejected the proposal on the basis of procedural arguments. In doing so, it essentially argued that a decision on an administrative complaint can only be challenged before the Court of Justice.

23. The arguments raised by EPSO, if accepted, would have potentially far-reaching implications for the role of the Ombudsman. If a decision on an administrative complaint could be reviewed only by the Court, this would essentially mean that the Ombudsman has no role as a redress mechanism in such complaints.

24. The role of the European Ombudsman is precisely to act as an alternative redress mechanism for individuals impacted by a decision on an administrative complaint. As such, the fact that the complainant did not bring the matter before the EU Courts does not in any way prevent the complainant from turning to the Ombudsman. According to the Statute of the European Ombudsman, individuals may turn to the Ombudsman once all prior administrative approaches have been exhausted.[20] This includes the appeal procedure under the Staff Regulations. This possibility was also clearly set out in the notice of competition. By claiming that the decision on the administrative complaint could only be challenged before the Court of Justice, EPSO is undermining the role of the Ombudsman and denying the complainant an effective right to seek redress though the Ombudsman, as established under EU law.

25. While EU law has established that decisions of EU authorities, including replies to administrative complaints, may only be annulled by the EU Courts, this does not mean that the EU authority that issued the decision cannot itself withdraw a decision that is unlawful. This possibility has been set out in EU case-law.[21]

26. As such, by asking EPSO to reconsider its position and address the issue, the Ombudsman acted in line with her mandate and in compliance with the legal framework. Moreover, although decisions of EU authorities may be subject to only one administrative complaint, the Ombudsman’s solution proposal did not suggest that EPSO invite the complainant to submit a second administrative complaint on the same matter, but rather invited EPSO itself to address the issue by reconsidering the original administrative complaint. 

27. According to EU case-law, an EU authority may withdraw an unlawful decision that is unfavourable to the addressee, while taking into account certain legal principles, including the principles of legal certainty and legitimate expectations.[22] This means that the withdrawal of a decision cannot affect the legal and factual situation of persons that relied on the lawfulness of that decision and who, on the basis of the decision, acquired certain rights. However, this does not mean that the withdrawal of a decision by an EU authority would automatically breach the principle of legal certainty. The purpose of legal certainty is not to maintain the status quo, but to protect citizens’ expectations based on administrative action.

28. In this case, EPSO failed to explain how reconsidering the decision on the administrative complaint would affect the principle of legal certainty. As EPSO rejected the complainant’s administrative complaint, the legal and factual situation of the complainant did not change, and the decision did not grant legal rights to the complainant or to any other candidates. The situation of the complainant remained that of a candidate who was not included in the reserve list. As such, the Ombudsman does not see how, if EPSO were to withdraw its decision on the administrative complaint and adopt a new one in its place, this would breach the principle of legal certainty. Rather, it would allow EPSO to correct a situation that was the result of an erroneous application of EU law.

29. A Court judgement only applies between parties to the proceedings and does not create an automatic obligation for an EU body to re-examine identical or similar situations. However, in this case, EPSO was already re-examining its decision not to place the complainant on the reserve list in the context of the administrative complaint, in which the complainant specifically raised the issue of the language regime. In this regard, EPSO was required to adopt a decision that was legally sound and in compliance with the applicable law. As both rulings had been issued by the Court prior to EPSO’s decision on the administrative complaint, EPSO should have ensured that its decision on the administrative complaint was in line with the Court’s rulings.  

30. In light of the above, the Ombudsman finds that the position EPSO adopted in its reply to the administrative complaint was wrong in law and constitutes maladministration. She therefore makes a corresponding recommendation below to the effect that EPSO should reconsider the complainant’s administrative complaint. In doing so, EPSO should accept the complainant’s request to be allowed to re-sit the tests at issue. 

31. By way of conclusion, the Ombudsman finds it important to note that she is well aware of the systemic nature of the issue underlying this case on the language regime of selection procedures.

Recommendation

On the basis of the inquiry into this complaint, the Ombudsman makes the following recommendation to EPSO:

The European Personnel Selection Office (EPSO) should reconsider the complainant’s administrative complaint. In doing so, EPSO should accept the complainant’s request to be allowed to re-sit the tests at issue.  

EPSO and the complainant will be informed of this recommendation. In accordance with Article 4(2) of the Statute of the European Ombudsman, EPSO shall send a detailed opinion by 2 October 2023.

Emily O'Reilly

European Ombudsman

Strasbourg, 30/06/2023

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.253.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A253%3ATOC

[2] Open competition EPSO/AD/374/19 - 4: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AC%3A2019%3A191A%3ATOC. The reserve list resulting from the selection procedure is valid until end June 2024, see https://epso.europa.eu/en/successful-candidates/reserve-list/374-4.

[3] Due to the outbreak of the COVID-19 pandemic, the group exercise tests was temporarily suspended and replaced by a situational competency-based interview. See addendum to the notice of competition: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:C2020/374A/01&from=NL

[4] See section 4.3 of the notice of competition and Article 90(2) of the EU Staff Regulations: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501

[5] Judgment of the Court of First Instance (Fourth Chamber) of 16 September 1993, Noonan v Commission, case T-60/92, paragraph 23: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61992TJ0060_SUM&from=FI; Judgment of the Court of First Instance (Fifth Chamber) of 31 January 2006, Giulietti v Commission, case T-293/03, paragraph 41: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62003TJ0293;

[6] Judgment of the Court (Ninth Chamber) of 8 September 2021, Spain v Commission, case T-554/19: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245709&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1595857;

[7] Judgment of the General Court (Fifth Chamber) of 11 December 2007, Jörn Sack v European Commission, case T-66/05, paragraph 37: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A62005TJ0066.

[8] Spain v Commission, case T-554/19, see footnote 6.

[9] Judgment of the General Court (First Chamber) of 9 June 2021, Ana Calhau Correia de Paiva v Commission, case T‑2021/17: https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-202/17&jur=T.

[10] Judgment of 2 July 2014, Da Cunha Almeida v Commission, case F‑5/13, paragraph 38: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62013FJ0005_SUM.

[11] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's proposal for a solution available at: https://www.ombudsman.europa.eu/en/solution/en/172045

[12] Judgment of the Court (Grand Chamber) of 14 June 2016, European Commission v Peter McBride and Others, case C-361/14, paragraph 55: https://curia.europa.eu/juris/liste.jsf?language=en&num=C-361/14%20P

[13] Judgment of the General Court (Fifth Chamber) of 11 December 2007, Jörn Sack v European Commission, case T-66/05,  paragraphs 36-37: https://curia.europa.eu/juris/liste.jsf?language=en&num=T-66/05; Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2009, O v European Commission, joined cases F-69/07 and F-60/08, ECLI:EU:F:2009:128, paragraph 45: https://curia.europa.eu/juris/liste.jsf?num=F-69/07&language=en.

[14] Judgment of the General Court (Fourth Chamber, Extended Composition), 21 March 2012, Ireland and Others v European Commission, Joined cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV, paragraph 62: https://curia.europa.eu/juris/liste.jsf?num=T-50/06&language=EN

[15] Judgment of the Court of 14 September 1999, Commission v AssiDomän Kraft Products and others,C-310/97 P, paragraphs 54-56; EU:C:1999:407: https://curia.europa.eu/juris/liste.jsf;jsessionid=9ea7d2dc30db7c4e75769d204a6f8fa6fd6fca2e6ba7.e34KaxiLc3qMb40Rch0SaxqTbNb0?num=C-310/97&language=en

[16] Article 228 TFEU: https://www.ombudsman.europa.eu/en/legal-basis/treaties/en

[17] Regulation (EU, Euratom) 2021/1163 of the European Parliament of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom:  https://www.ombudsman.europa.eu/en/legal-basis/statute/en

[18] Article 4 of the European Code of Good Administrative Behaviour on Lawfulness: https://www.ombudsman.europa.eu/en/publication/en/3510. The Ombudsman is not a court of law, settling issues of legal interpretation. However, to comply with principles of good administration, a public authority must be able to show that its position is legally sound. In line with this, the EU Courts hold the Ombudsman’s findings to be a relevant - though not binding - element when adjudicating on the actions of an EU authority, case T-292/15 Vakakis v Commission, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62015TJ0292. Paragraph 71 of the judgment states that : “ ...first, it is for the Court to determine, following its own assessment, whether, in the present case, the unlawful acts invoked constitute a sufficiently serious infringement of a rule of law which is intended to confer rights on individuals and, second, to that end, the decision of the European Ombudsman is, contrary to what is contended by the Commission, relevant but it must be taken into consideration solely as a possible indication of the infringement by the Commission of the principle of sound administration. Eventually, the Court arrived at the same finding as the Ombudsman.”

[19] Judgment of the Court (Second Chamber)  of 16 March 2023, Commission v Calhau Correia de Paiva, C-511/21 P, ECLI:EU:C:2023:208: https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-511/21%20P

[20] Statute of the European Ombudsman, Article 2(3).

[21] Judgment of the General Court (Ninth Chamber) of 12 February 2020, ZF v European Commission, T-605/18, ECLI:EU:T:2020:51, paragraph 148: https://curia.europa.eu/juris/liste.jsf?num=T-605/18&language=EN; Judgment of the General Court of 27 June 2017, José Luis Ruiz Molina v European Union Intellectual Property Office, T-233/16 P, ECLI:EU:T:2017:435, paragraph 27: https://curia.europa.eu/juris/liste.jsf?num=T-233/16&language=EN;  Judgment of the General Court (Fourth Chamber, Extended Composition), 21 March 2012, Ireland and Others v European Commission, Joined cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV, ECLI:EU:T:2012:134, paragraph 59: https://curia.europa.eu/juris/liste.jsf?num=T-50/06&language=EN

[22] Judgment of the General Court of 27 June 2017, José Luis Ruiz Molina v European Union Intellectual Property Office, T-233/16 P, para. 27: https://curia.europa.eu/juris/liste.jsf?num=T-233/16&language=EN