The background to the complaint

1. The complainant is a German national who participated in Open Competition EPSO/AST/117/11 (AST1) in the secretarial field for the languages Greek, English, Estonian, Finnish, French, Irish, Hungarian and Italian.

2. The relevant Notice of Competition[1] stated that, for the assessment tests, standard European keyboards would be provided and "details of the keyboards available [would] be included in the invitation to the assessment tests".

3. On 18 April 2012, the complainant received an invitation to sit the assessment tests. Annexed to this invitation was a brochure which stated that the practical tests would be conducted on a computer and that candidates would "receive a European standard keyboard".

4. On 26 April 2012, the complainant sent an e-mail to EPSO's functional mailbox requesting a German (QWERTZ) keyboard. In his e-mail, he noted that EPSO's questionnaire to be completed by candidates did not foresee that option[2]. He argued that the purpose of the test was not to check whether candidates could work with an English or Hungarian keyboard but whether they could operate MS Office and process Word documents. He also submitted that German keyboards were in fact standard European keyboards.

5. On 11 May 2012, EPSO rejected the complainant's request. It stated that, "for logistical reasons and to respect the equal treatment of all candidates", it had limited the choice of keyboards to the languages of the competition.

6. On 3 June 2012, the complainant complained to the European Ombudsman.

The subject matter of the inquiry

7. The complainant made the following allegation and related claim.

Allegation

EPSO wrongly rejected the complainant's request to be provided with a German (QWERTZ) keyboard for the assessment test in Open Competition EPSO/AST/177/11.

Claim

EPSO should provide the complainant with a German keyboard at the assessment test.

The inquiry

8. The Ombudsman opened an inquiry on 4 July 2012, asking EPSO to submit an opinion. EPSO did so on 10 October 2012. The Ombudsman subsequently invited the complainant to make observations, which he sent on 31 December 2012.

The Ombudsman's analysis and conclusions

A. Allegation that EPSO wrongly rejected the complainant's request to be provided with a German keyboard

Arguments presented to the Ombudsman

9. In his complaint, the complainant alleged that EPSO wrongly rejected his request to be provided with a German (QWERTZ) keyboard for the assessment test in Open Competition EPSO/AST/177/11.

10. The complainant argued that, by limiting the choice of keyboards available for candidates, EPSO was more restrictive than the Notice of Competition. He considered that to refuse a German national the possibility to work on a German keyboard was discriminatory.

11. Finally, he noted that it was not true that the competition was held in Greek, English, Estonian, Finnish, French, Irish, Hungarian and Italian. In fact, three (out of five) parts of the test were in candidates' second language, which could be German. It was therefore unclear why German keyboards could not be provided.

12. In its opinion, EPSO stated the following.

13. EPSO and the Selection Board are bound by the principles of equal treatment and sound administration, and must ensure that competitions are conducted properly[3].

14. Although EPSO and the Selection Board have no legal obligation to accommodate candidates' personal preferences as regards testing conditions (such as a certain type of computer, keyboard, keyboard layout, mouse, screen rather than another), they always deploy their best efforts in order to provide a testing environment as convenient and serene as reasonably possible. This is why, when a test requires the use of a keyboard, candidates are given the possibility to choose between the different keyboard types available in test centres. EPSO nevertheless submitted that the choice of keyboards is linked to the languages of the relevant competition.

15. EPSO stressed, however, that any additional accommodations can only be put in place as long as they do not prejudice the principles of sound administration and equality of treatment. In that regard, EPSO pointed out that "the principle of equality of treatment laid down in Article 5(3) of the Staff Regulations is a general rule forming part of the law applicable to the Community civil service. Discrimination contrary to that rule occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified"[4]. EPSO contended that there is a breach of the principle of equal treatment laid down in Article 5(3) of the Staff Regulations where two categories of persons whose factual and legal situations disclose no essential difference are treated differently[5]. It added that, according to long-standing case law, a breach of the principle of equal treatment cannot be established on the basis of the differences that might exist between the specific factual circumstances of candidates[6]. EPSO submitted that candidates' individual preferences as to the desired keyboard layout are undoubtedly such factual differences.

16. In line with the case-law, the efficient organisation of tests cannot, in EPSO's view, take into account the individual preferences of each candidate, particularly when this implies practical logistic arrangements.

17. As regards the complainant's argument that some of the tests were in candidates' second language (English, French and German) and that MS Word and Excel were available also in these three languages, EPSO underlined that the test the complainant referred to was an in-tray exercise. It pointed out that, for this kind of test, there is a standard setup of languages for the software used. Moreover, no keyboard was required for this test, but only the mouse.

18. In his observations, the complainant stated that, at the test centre where he sat his test, German standard keyboards were on stock and could thus have been made available. He added that it was incomprehensible to him why the organisational effort of providing German standard keyboards should be greater than that of providing other keyboards.

19. The complainant added that, in the practical tests a and b, the aim was not to check whether candidates were able to use keyboards, but instead to check if they could work with texts and tables. The complainant further contended that it is irrelevant in what language a candidate sits an examination. What matters was a candidate's nationality and that there is no discrimination on that ground.

The Ombudsman's assessment

20. In order to assess the complainant's allegation, the Ombudsman needs, first, to examine the content of Notice of Open Competition EPSO/AST/117/11, and, subsequently, to assess the arguments EPSO put forward in support of its rejection of the complainant's request.

21. The Ombudsman recalls that Section V. of the Notice of Competition expressly stated that "standard European keyboards" would be provided. While the notion of "standard European keyboards" is not defined in the Notice of Competition and is not self-explanatory, the Notice of Competition explicitly foresaw that further details would be provided at a later stage. These details were provided in the invitation to the test. Consequently, the Ombudsman does not consider convincing the complainant's argument that EPSO was more restrictive than the Notice of Competition.

22. As regards the complainant's view that he was discriminated against on the ground of nationality, the Ombudsman notes that EPSO essentially put forward that providing him with a German keyboard would have breached the principle of equal treatment. Moreover, it pointed to logistical constraints.

23. The Ombudsman considers EPSO's position that the choice of keyboards provided is linked to the languages of the relevant competition to be convincing. In fact, the relevant competition was organised for the languages Greek, English, Estonian, Finnish, French, Irish, Hungarian and Italian. It was therefore logical for EPSO to provide keyboards in these languages.

24. As regards lastly the complainant's argument that parts of the test were in German and that German was thus a language of the competition, the Ombudsman notes the following. In accordance with point 2 of Section V of the Notice of Competition, only the tests assessing candidates' specific competencies (i.e., tests a and b) appear to have required the use of a keyboard. The general competencies (tests c, d, and e) were to be tested by means of, among others, an in-tray exercise, which does not appear to have required a keyboard. The complainant did not dispute EPSO's explicit statement that no keyboard was required for the in-tray exercise. Consequently, EPSO appears to have been correct in stating that the complainant did not need a keyboard as regards the tests he sat in German.

25. In view of the forgoing, the Ombudsman finds that the complainant's allegation cannot be sustained. Consequently, his claim cannot succeed either.

B. Conclusions

On the basis of her inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration in the present case.

The complainant and the EPSO will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 9 January 2014

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[1] OJ 2011 C 336 A, p. 5.

[2] The questionnaire asked candidates to choose between languages for MS Word. The choice was between English, French and German. It then asked them to choose between keyboards, enumerating the ones for the languages of the competition, and whether they wanted a right-hand or left-hand mouse.

[3] Case T-159/98 Torre and Others v Commission [2001] ECR-SC I-A-83 and II-395, paragraphs 46-47; Case T-193/00 Felix v Commission [2002] ECR FP-I-A-00023 and FP-II-101, paragraph 45; Case T-371/03 Le Voci v Council [2005] ECR FP-I-A-209 and FP-II-957, paragraph 78.

[4] Joined Cases 198/81 to 202/81 Micheli and Others v Commission [1982] ECR 4145, paragraphs 5 and 6; for the conditions of recruitment, see Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 24, and Case 119/83 Appelbaum v Commission [1985] ECR 2423, paragraph 25.

[5] Case T-159/95 Dricot Others v Commission [1997] ECR-SC I-A-385 and II-1035, paragraph 83.

[6] See, by analogy, Case T-376/03 Hendrickx v Council [2005] ECR-SC I-A-83 and II-379, paragraph 33.