THE BACKGROUND TO THE COMPLAINT

1. On 23 January 2008, the European Personnel Selection Office (EPSO) published Open Competition EPSO/AD/117/08. The aim of the Competition was to draw up a reserve list from which to recruit principal administrators in the field of fraud prevention[1].

2. The complainant applied to take part in the Open Competition. He completed the admission tests successfully. On 5 June 2008, EPSO invited him to submit a full application. On 11 July 2008, EPSO informed the complainant that he had not been admitted to the written tests because the Selection Board considered that he did not possess the professional experience required by the Notice of Competition. Prior to this, on 24 June 2008, the complainant had written to EPSO asking for the following information: (i) The total score awarded to the best candidate in the list of candidates who were not invited to submit a full application[2]. (ii) The total score awarded to the candidate who ranked 61st, namely, the first candidate to be excluded from those who were admitted to the written tests.

3. On 8 July 2008, EPSO informed the complainant that it was not in a position to provide him with the requested information.

4. Also on 8 July 2008, the complainant asked EPSO to give him reasons for its refusal. He asked EPSO to reply in Italian, in accordance with Article 21 of the EC Treaty, which states that "[e]very citizen of the Union may write to any of the institutions or bodies ...in one of the Treaty languages ... and have an answer in the same language[3]."

5. On 14 July 2008, EPSO informed the complainant that, for reasons of confidentiality, it could not answer his question about the score awarded to the candidate ranked 61st after the completion of the admission tests. EPSO stated, however, that every candidate who obtained a pass mark in the admission test was invited to submit a full application. The reason for this was that fewer people passed the admission test than the number foreseen in the Notice of Competition. With regard to the complainant's request that he receive an answer in Italian, EPSO stated that "as per the Notice of Competition, EPSO communicates with candidates in English, French or German only. This is in order to ensure clear understanding on both sides."

6. On 15 July 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

7. In his complaint, the complainant made the following specific allegation and claim, which the Ombudsman took up for inquiry on 30 September 2008[4].

Allegation

EPSO's decision to draft its correspondence with candidates to Open Competition EPSO/AD/117/08 only in English, French or German constituted a violation of the principle, foreseen by Article 21 of the EC Treaty, that every person may write to the institutions of the Community in one of the Treaty languages and have an answer in the same language.

Claim

EPSO should respect Article 21 of the EC Treaty in all stages of open competitions avoiding any discrimination against those candidates who are not native speakers of English, French or German.

8. The Ombudsman notes that, in his observations, the complainant submitted a new allegation which was not in the original complaint. The complainant alleged that EPSO's request for all documents enclosed with candidates' applications to be translated into English, French or German discriminated against those citizens whose documents were written in a language other than one of the three languages mentioned above.

9. The Ombudsman recalls that Article 2(4) of his Statute requires that a complaint "must be preceded by the appropriate administrative approaches to the institutions and bodies concerned". The Ombudsman notes that the copies of the correspondence exchanged between the complainant and EPSO, submitted to him by the complainant, did not show that the latter had already raised this allegation with EPSO. The Ombudsman is, therefore, not entitled to deal with it. His inquiry is limited to the allegation and claim as identified above.

THE INQUIRY

10. On 30 September 2008, the Ombudsman opened an inquiry and asked EPSO for an opinion on the complainant's allegation and claim. EPSO's opinion was forwarded to the complainant, from whom the Ombudsman received observations on 26 February 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of a violation of Article 21 of the EC Treaty (Article 24 of the Treaty on the Functioning of the European Union)

Arguments presented to the Ombudsman

11. The complainant alleged that EPSO's decision to draft its correspondence with candidates to Open Competition EPSO/AD/117/08 only in English, French or German constituted a violation of the principle enshrined in Article 21 of the EC Treaty that every person may write to the institutions of the Community in one of the Treaty languages and have an answer in the same language.

12. In its opinion, EPSO stated that, in his application for the Open Competition, the complainant chose Italian as the main language and English as the second language for the purposes of the Competition. The complainant passed the pre-selection tests and was, therefore, invited to submit a full application in accordance with point IV.3 of the Notice of Competition. On 11 July 2008, EPSO informed the complainant that the Selection Board had assessed his application and concluded that, by the closing date for online registration (26 February 2008), he had not proved that, since obtaining the academic qualifications required by the Notice of Competition, he had acquired at least 16 years professional experience, of which at least half had to be related to fraud prevention.

13. With specific regard to the complainant's allegation, EPSO emphasised that the Notice of Open Competition EPSO/AD/117/08 clearly stated that candidates "must have a thorough knowledge of one of the official languages of the European Union and a satisfactory knowledge of English, French or German." Furthermore, the Notice of Competition provided that "to ensure that all general texts relating to the competition and all communication between you [the candidates] and EPSO are clearly understood on both sides, only English, French or German will be used for the invitations to the various tests and correspondence between you and EPSO." All potential candidates were, therefore, duly informed of the procedural conditions under which the Open Competition would be carried out. By submitting their application, candidates accepted these conditions.

14. EPSO further explained that knowledge of at least one of the three languages mentioned above reflects the interests of the institutions. Officials are required to have a knowledge of certain languages in order to guarantee a high standard of internal communication so that tasks allocated to them can be completed within a reasonable time.

15. Moreover, EPSO stressed that candidates applying for a post in one of the European Union institutions cannot be compared to ordinary citizens who address the institutions of the European Union while participating in the democratic process of the Union. In support of its position, EPSO argued that, from the moment a citizen decides to participate in an open competition, he or she potentially becomes an official of one of the European institutions, as recognised by the European courts.

16. EPSO also underlined the principle established by the Court of First Instance in its judgment in Case T-185/05 Italy v Commission[5]. According to the Court, the numerous references in the EC Treaty to the use of languages in the European Union cannot be interpreted as establishing a general principle of Community law according to which every citizen is entitled, in all circumstances, to receive in his or her language a version of anything that might affect his or her interests. Applying "the same language rules to candidates for posts of officials and other servants of the Communities as to officials and other servants themselves is justified by the fact that such candidates enter into a relationship with a Community institution solely in order to obtain a post of official or other servant for which certain knowledge of languages is necessary and may be required by the Community provisions applying in respect of appointment to the post concerned".

17. In the case quoted above, the Court of First Instance confirmed the position already adopted in Rasmussen[6] and Bonaiti Brighina[7], where it held that Article 6 of Regulation No 1 determining the languages to be used by the European Economic Community[8] expressly allows institutions to stipulate in their rules of procedure which of the languages are to be used in specific cases.

18. In light of the above, and considering that successful candidates of Open Competition EPSO/AD/117/08, if recruited, would have to function in a multicultural and multilingual environment where the knowledge of English, French or German would be required to carry out their duties, the conditions laid down in the Notice of Competition were legitimate and appropriate for the aim pursued.

19. In light of the above, EPSO rejected the complainant's allegation.

20. In his observations, the complainant basically maintained his allegation and considered that, even if he accepted that candidates for open competitions are subject to the institutions' 'internal rules' concerning the use of languages, these rules no longer applied to him in view of the fact that he had been excluded from the said Open Competition.

The Ombudsman's assessment

21. The Notice of Competition for Open Competition EPSO/AD/117/08 stipulated that only English, French or German was to be used for the invitations to the various tests and in general correspondence between candidates and EPSO. The intent for this prevision was to ensure that all general texts relating to the competition and all communication between candidates and EPSO would be clearly understood by both sides. The complainant, who applied to take part in the Open Competition in question, chose Italian as the main language and English as the second language.

22. By replying in English to the complainant's request for information of 8 July 2008, EPSO, therefore, acted in accordance with the Notice of Competition, the terms of which the complainant should have been aware of.

23. The complainant alleged, however, that EPSO's use of English in its reply to his correspondence in Italian, constituted a breach of the principle laid down in Article 21 of the EC Treaty. The Ombudsman, therefore, has to analyse whether the Notice of Open Competition EPSO/AD/117/08 was, in itself, in breach of the said Article, which sets out the general principle that any person may write to the institutions of the Community in one of the Treaty languages, and receive an answer in the same language.

24. In this regard, the Ombudsman notes a point to which EPSO referred in its opinion. According to EPSO, the Community courts have held that Article 6 of Regulation No 1, which determines the languages to be used by the European Economic Community, expressly allows institutions to stipulate in their rules of procedure which of the languages are to be used in specific cases, in accordance with the internal needs of the institutions. Furthermore, in its Judgment in Case T-185/05 Italy v Commission (see footnote 5 above), the Court of First Instance considered that applying the same language rules to candidates applying for posts as officials and other Community servants, as well as to appointed officials and other Community servants (see paragraph 16 above), is justified.

25. In light of the above, the Ombudsman considers that limiting the languages used to English, French or German for the invitations to the various tests for Open Competition EPSO/AD/117/08, and in the correspondence between EPSO and the candidates, does not constitute a violation of the general principle of Community law that citizens have the right to use one of the official EU languages in their correspondence with the institutions, and to receive a reply in the same language, as foreseen by Article 21 of the EC Treaty. In the Ombudsman's view, EPSO's reasons for its decision are valid, adequate, and coherent with Community case-law.

26. The complainant considered that, since he was excluded from the Open Competition and, therefore, was no longer a candidate, EPSO was not justified in using English. The Ombudsman, however, considers it that it was entirely reasonable for EPSO to use English in its reply to the complainant's message of 8 July 2008, in view of the nature of the complainant's request. The complainant's message contained requests for information which related to the actual Open Competition itself, and these were submitted by the complainant in his capacity as a candidate for Open Competition EPSO/AD/117/08.

27. In light of his above findings, the Ombudsman concludes that there has been no maladministration corresponding to the complainant's allegation.

B. The complainant's claim

28. Relying on his above allegation, the complainant claimed that EPSO should respect Article 21 of the EC Treaty at all stages of open competitions, in order to avoid discriminating against candidates who are not native speakers of English, French or German.

29. Given the Ombudsman's finding of no maladministration regarding the complainant's allegation, the complainant's claim cannot stand.

C. Conclusion

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

There has been no maladministration corresponding to the complainant's allegation. His claim cannot, therefore, stand.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 4 March 2010

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[1] OJ 2008 C 16 A, p. 1.

[2] In accordance with point IV.3 of the Notice of Competition "[T]he candidates [240 for Open Competition EPSO/AD/117/08] with the highest aggregate marks in the admission tests and a pass mark in each ... will be asked to print out and complete the full application form."

[3] The present complaint was submitted to the Ombudsman before the entry into force, on 1 December 2009, of the Treaty on the Functioning of the European Union. Article 21 of the EC Treaty has been substituted by Article 24 of the new Treaty, which stipulates that: "[E]very citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language".

[4] It should be noted that the complainant did not complain about EPSO's refusal to answer his above-mentioned request for information dated 24 June 2008.

[5] Case T-185/05 Italian Republic v Commission of the European Communities, [2008] ECR, p. II-03207, paragraphs 116 and 119.

[6] Case T-2003/203 Rasmussen v Commission, [2005] ECR p. I-A-00279, p. II-01287, paragraph 60.

[7] Case T-118/99, Bonaiti Brighina v Commission [2001] ECR II-00097, paragraph 13.

[8] OJ 1958, 17, pp. 385-386.