Made in accordance with Article 2(10) of the Statute of the European Ombudsman[1]

Background to the complaint

1. On 18 January 2023, the complainant, who is employed as an official by the European Commission, underwent a job interview for a position in the Commission’s Directorate-General for Environment. On 20 March 2023, the complainant received a telephone call from a member of the selection panel, who notified her that the selection procedure had been concluded and that she had not been selected for the position.

2. On 30 March 2023, the complainant wrote to the Commission, asking for a detailed statement of reasons for the panel not selecting her, as well as the disclosure of the “evaluation grid”.

3. On 3 April 2023, the Commission replied, refusing to disclose the evaluation grid on the basis that it was a secret working document of the panel. It also refused to give a statement of reasons for not selecting the complainant in writing, since the complainant had already received oral feedback.

4. On 5 June 2023, the complainant submitted a complaint under Article 90(2) of the EU Staff Regulations. She contested the Commission’s failure to state reasons in writing, as required under Article 25 of the EU Staff Regulations and asked for assurances that the recruitment process had been conducted according to the principles of good administration.

5. On 14 June 2023, the complainant received a holding reply from the Commission, acknowledging the complaint and promising a reply within four months. Since the complainant did not receive a reply to her complaint within the deadline, she turned to the Ombudsman.

The inquiry

6. On 3 November 2023, the Ombudsman opened an inquiry into the Commission’s failure to reply to the Article 90(2) complaint. While the inquiry was ongoing, the Commission replied to the complainant, on 20 November 2023. In its reply, it did not deal with the substance of the complaint but, instead, referred to the provision under Article 90(2) of the Staff Regulations whereby the absence of a reply should be considered as an implicit decision of rejection.

7. Consequently, the Ombudsman decided to continue the inquiry into this complaint to assess whether there was any procedural irregularity or a manifest error of assessment.

8. In the course of the inquiry the Ombudsman inquiry team inspected the Commission’s file on this case. The Commission did not provide an official written reply to the complaint, but merely annotations on the Article 90(2) complaint, which it declared confidential. 

Arguments presented to the Ombudsman

9. The complainant stated that she was not satisfied with the reasons she had been given orally by the member of the selection panel for not having been selected. She contended that the failure to provide a written evaluation of her performance in the interview or her evaluation grid raised doubts about the impartiality and objectiveness of the decision-making process.

10. The Commission stated that it had communicated the outcome of the selection procedure to the complainant in writing and argued that it had provided “extensive feedback” orally. It argued that the evaluation grid is a ”working document that does not need to be communicated”.  

The Ombudsman's assessment

11. As the Ombudsman has previously stated, although a failure to reply to a complaint under Article 90(2) of the Staff Regulations within the set deadline is considered as an implicit rejection of the complaint, the Ombudsman’s consistent view is that it is good administrative practice to provide a substantive reply to such complaints.

12. Furthermore, the Ombudsman considers that the possibility of an implicit rejection in Article 90(2) was not created for the convenience of an administration not wishing to reply to a complainant, but rather to guarantee the complainant’s right to take the case before a court. The Ombudsman therefore calls on the Commission to reconsider its approach and always to provide a reasoned response within the time limits provided for in Article 90(2) of the Staff Regulations. The Ombudsman may decide to revert to this issue in due course.

13. Following the inspection, the Ombudsman determined that there is no evidence of a manifest error in the way the recruitment was conducted, including the selection panel’s assessment of the complainant’s performance in the interview.

14. However, the Commission has not provided convincing arguments as to why the complainant did not, on request, receive her evaluation grid and written reasons as to why she was not selected, as required by Article 25 of the Staff Regulations.

15. It is difficult to accept the Commission’s claim that the evaluation grid is a working document that should not be disclosed. In this case, the evaluation grid takes the form of grading next to criteria and descriptive assessments of the interviewed candidates’ merits. The evaluation grid contains information concerning only the complainant’s performance; it does not include a comparative assessment with the other candidates, nor does it contain any information on the other candidates. Thus, no confidential information would be revealed through its disclosure to the complainant. Furthermore, the evaluation grid does not contain any information on the individual positions taken by the members of the selection panel.

16. While the deliberations of the selection panel must be kept secret[2], the outcome of those deliberations are not universally covered by this obligation. To this end, as the European Data Protection Supervisor (EDPS) set out in its Guidelines concerning processing operations in the field of staff recruitment^[3], the provisions on the secrecy of the work of the panel does not preclude disclosing the criteria according to which the panel evaluated candidates, as well as the actual detailed marks or comments a particular candidate received with respect to each criterion. It is regrettable that the Commission appears not to have taken these principles into account.

17. The Commission’s decision not to share a written evaluation of the complainant’s performance in the interview, notably by providing her evaluation grid, has undermined the candidate’s trust in the impartiality of the recruitment process. This could have been avoided, for example, by following the EDPS guidelines. This was compounded when the complainant received no substantive reply to her complaint under Article 90(2) of the Staff Regulations.

The proposal for a solution

Based on the above findings, the Ombudsman proposes that the European Commission should provide the complainant with the evaluation grid concerning her performance in the interview and should do so without delay.

The European Commission is invited to inform the Ombudsman by 7 August 2024 of any action it has taken in relation to the above solution proposal.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 16/05/2024

 

[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] In accordance with Article 6 of Annex III of the Staff Regulations.

[3] https://edps.europa.eu/sites/default/files/publication/08-10-10_guidelines_staff_recruitment_en.pdf