Background to the complaint

1. The complainant was an unsuccessful candidate in a selection procedure to recruit IT specialists, which was organised by the European Union Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA)^[1]. Dissatisfied with the outcome, he appealed eu-LISA’s decision. Eu-LISA rejected his appeal, and he turned to the European Ombudsman.

The inquiry

2. The Ombudsman opened an inquiry into the complainant’s concerns that eu‑LISA did not reply to all the issues raised in his appeal, and that the replies he received were incorrect.

3. In the course of the inquiry, eu‑LISA sent an additional reply to the complainant, settling the first aspect of the complaint.

4. The Ombudsman has taken into account the complainant’s comments on that reply, as well as further clarifications from eu-LISA about the rules it applies to selection procedures.

The arguments of the parties

5. The complainant argued that:

(a) The ‘vacancy notice’, which set out the job description, described the tasks of a ‘system engineer’, whereas the selection procedure aimed to recruit a ‘system administrator’.

(b) Eu-LISA extended the application deadline, thereby allowing more people to apply.

(c) The ’selection committee’, which carried out the interviews, did not include a member of the unit in which the successful candidates would work.

(d) The interview was “atypical”, and included technical questions^[2] not linked to the profile set out in the vacancy notice.

(e) The written test included questions that appeared to be tailored to current or former eu‑LISA staff members. In addition, the applicants did not know in advance the weighting of each part of the written test towards the total score.

(f) Based on his professional experience, he should have received a much higher score.

(g) Eu-LISA informed him of the results of the selection procedure only on 19 July 2017, even though his interview took place on 6 April 2017.

(h) Applicants could submit an appeal only by post, which could delay the review and mean the successful candidates were more likely to be recruited already, rendering the appeal futile.

6. Eu-LISA argued that:

(a) It enjoys broad discretion in determining the rules and conditions under which a procedure is organised. This extends to the selection criteria, which are defined based on the skills required for the post and the interest of the service.

(b) Although it does not have specific rules on extending deadlines when it comes to recruitment procedures, eu-LISA applies the principle set out in the public procurement guidelines used by the EU agencies.^[3] These guidelines state that deadlines may be extended before the initial deadline expires. Eu-LISA informed the Ombudsman that it is planning to adopt “recruitment guidelines” to address this issue.

(c) The executive director of eu-LISA appointed the selection committee in accordance with the applicable rules^[4]. The chair of the selection committee informed the applicants that a member of the committee was from the unit in which the successful candidates would work.

(d) All applicants were treated equally and were asked the same oral and written questions. Concerning the technical questions, referred to by the complainant, eu­LISA considered these to relate to the job description set out in the vacancy notice. Furthermore, the complainant had indicated in his application that he had experience related to this area, and the selection committee was therefore using its discretion to evaluate the accuracy of the information provided in the application.

(e) The questions in the written test were based on objective ‘evaluation criteria’, which were adopted prior to the selection procedure and in accordance with the vacancy notice. The complainant’s assumption that they favoured certain applicants was unfounded. In fact, none of the successful candidates had previously worked at eu-LISA.

(f) The complainant’s score reflected the selection committee’s judgment on how well the information provided in his oral and written replies met the evaluation criteria. The committee re-examined the complainant’s file following his appeal. It concluded that there had been no mistake and that the marks awarded to him were correct.

(g) The notification of the results was in line with the practices of EU agencies.

(h) The vacancy notice did not specify how applicants could submit complaints. Even though the vacancy notice indicated eu-LISA’s postal address, the complainant could have submitted his appeal using the e-mail address provided for correspondence relating to the selection procedure. Eu-LISA added that selection procedures usually take several months to be completed.

The Ombudsman’s assessment

 (a) Job description in the vacancy notice

7. The complainant contends that the job description in the vacancy notice described the tasks of a ‘system engineer’ rather than a ‘system administrator’. Eu-LISA correctly points outs that it enjoys broad discretion in this area, which extends to how it defines the skills required for a post. There is nothing to suggest that eu-LISA exceeded its broad margin of discretion in terms of the tasks it set out in the vacancy notice for a system administrator. While it might have been preferable for eu-LISA to use the term ‘system administrator’ consistently, the Ombudsman’s view is that the use of the term ‘system engineer’ in two places in the vacancy notice is, in view of eu-LISA’s broad discretion, not problematic.^[5]

(b) Extension of the deadline

8. The initial application deadline was 3 January 2017. Eu-LISA published its decision to extend the deadline on 19 December 2016, that is, before the deadline expired. It is within the discretion enjoyed by institutions, bodies or agencies of the EU to extend the deadline for the submission of applications to guarantee the broadest possible pool of candidates. The Ombudsman welcomes the fact that eu-LISA intends to put in place specific recruitment guidelines.

(c) Composition of the selection committee

9. Eu-LISA’s rules on recruiting temporary staff^[6] state that one member of the selection committee must be a specialist/expert from the respective department, unit or sector. In its reply to the complainant, eu-LISA confirmed that a member of the selection committee was indeed from the respective unit. The complainant has not provided any evidence to the contrary.

(d) Interview

10. Eu-LISA’s rules state that the selection committee must: determine the interview questions before the selection procedure, ask the same questions to all candidates, and hold interviews of the same duration. The complainant has not submitted any evidence to show that, during the interview, the selection committee did not respect these provisions, or discriminated against certain candidates.

11. Concerning the technical questions asked in the interview, the Ombudsman finds eu-LISA’s explanations reasonable. The complainant has not provided any convincing argument to the effect that eu-LISA’s reply was manifestly wrong, or that it was not justified in asking those questions.

(e) Written test

12. The vacancy notice indicated that applicants should demonstrate that they had ”work experience in drafting technical specifications for procurement procedures”. Therefore, eu-LISA’s reply that the questions for the written test were based on the vacancy notice is correct. As to the weighting of each part of the written test, it is true that eu-LISA communicated this information to the complainant only after he asked for it. However, the Ombudsman notes that there is no provision in the applicable rules requiring eu-LISA to make such information available proactively.^[7]

13. That said, if a particular test has several parts, it could be helpful for candidates to know beforehand the weighting allocated to the different parts.^[8] Eu-LISA could consider doing this for future selection procedures.

(f) Score

14. Selection committees have a wide margin of discretion when assessing the knowledge and abilities of candidates taking part in a selection procedure^[9]. As eu-LISA correctly stated, the complainant’s personal belief about his performance is not sufficient to establish that there was any manifest error in how the selection committee assessed his performance^[10].

(g) Notification of results

15. Eu­LISA informed the complainant of the results of the selection procedure three months after his interview. Given that the selection procedure aimed to recruit five IT specialists corresponding to four different profiles, the Ombudsman finds the period between the complainant’s interview (6 April 2017) and the notification of his results (19 July 2017) to be reasonable.

(h) Complaint procedure

16. The vacancy notice stated that applicants could appeal by writing to eu-LISA’s postal address. It did not mention that applicants could send their complaints by other means (such as by e-mail). However, the vacancy notice did mention that applicants could use eu-LISA’s functional e‑mail address to submit their applications, to ask questions regarding the use of their personal data and to make “queries about the selection process”. The language used in the vacancy notice did not clearly exclude other means of communication for making an appeal. Even if this were the case, the complainant did not provide any evidence to show that using a postal address delayed how eu-LISA dealt with his appeal, allowing eu-LISA to recruit another candidate in the meantime.

17. That said, for the sake of clarity and to avoid similar issues in the future, eu-LISA could explicitly mention in vacancy notices all possible means that candidates can use to submit an appeal.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the EU Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu LISA).

The complainant and eu-LISA will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 25/04/2019

 

[1] Vacancy notice eu-LISA/16/TA/AD5/12.1, available at: https://www.eulisa.europa.eu/JobOpportunities/Job%20Opportunities/IT%20Specialist%20(5%20posts)%20-%20Prolonged%20deadline/VN_EXT%20-%20IT%20Specialist%20AD5_EXTENDED.pdf

[2] In particular, the complainant referred to a question about ‘proprietary applications’.

[3] See Public Procurement Guidelines for Practitioners: https://ec.europa.eu/regional_policy/sources/docgener/guides/public_procurement/2018/guidance_public_procurement_2018_en.pdf.

[4] Decision no 2015-166 of 18 November 2015 of the Management Board of eu-LISA laying down general implementing provisions on the procedure governing the engagement and use of temporary staff under Article 2(f) of the Conditions of Employment of Other Servants of the European Union.

[5] Section 3.4 of the vacancy notice (describing the tasks of a system administrator) reads as follows: “The System Engineer manages the internal and external coordination with all stakeholders for the definition of related services, including the incorporation of customer requirements and needs and the management of vendor relationships. The System Engineer is to that respect in charge of the System infrastructure, as well as of the operational management of the related contracts”. The vacancy notice then summarises the tasks of a system administrator, as follows: “Designing the future system infrastructure, including its integration into the existing technical and procedural framework of the Agency; Managing/Liaising with external contractors, from a technical and operational point of view; Ensuring coordination with a range of stakeholders (e.g. development and/or maintenance contractors, Member States, European Commission); Managing contractors and assist the unit/division responsible for finance, procurement and contracts in drafting technical specifications for new procurement procedures.”

[6] Decision no 2015-166 of 18 November 2015, cited above (footnote 4).

[7] Eu-LISA’s Implementing Provisions state that the vacancy notice must specify the type of tests. In this case, the vacancy notice specified that the selection procedure included an interview and a written test. It also mentioned the minimum points required to be included in the ‘reserve list’.

[8]See, for example, the decision of the Ombudsman in case 328/2011/TN, available at: https://www.ombudsman.europa.eu/mt/decision/en/11465. 

[9] Judgment of the Court of First Instance of 19 February 2004, Konstantopoulou v Court of Justice, T‑19/03, ECLI:EU:T:2004:49, paragraph 43: http://curia.europa.eu/juris/liste.jsf?language=en&num=T-19/03.

[10] Judgment of the Court of First Instance of 1 December 1994, Michaël-Chiou v Commission, T-46/93, ECLI:EU:T:1994:285, paragraph 50: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61993TJ0046.