Strasbourg, 12 June 2007

Dear Mr R.,

On 12 June 2006, you submitted a complaint to the European Ombudsman against the European Court of Auditors (the "ECA") concerning the selection procedure organised by the latter for the recruitment of lawyers (temporary or contractual agents of group of functions IV).

On 12 July 2006, I forwarded the complaint to the President of the ECA. The ECA sent its opinion on 20 September 2006.

On 26 September 2006, I forwarded the opinion of the ECA to you with an invitation to make observations, if you so wished.

No observations were received from you by the date set for this purpose.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

In August 2005, the ECA organised a selection procedure for the recruitment of lawyers as temporary and/or contractual agents (group of functions IV) at its Legal Service.

The complainant sent his application to the ECA. By e-mail of 18 April 2006, the complainant requested information on the outcome of the selection procedure.

By letter dated 3 April 2006 received by the complainant on 19 April 2006, the President of the Selection Board informed the complainant that, after a comparative examination of the qualifications of all the candidacies declared admissible, the Board had not been able to include him on the list of the 20 best candidates selected for participating in the tests.

In the complainant’s view, the Selection Board had unfairly decided not to include his name on the list of the 20 best candidates. The complainant considered that his qualifications and professional experience met the requirements of the post.

By e-mail of 1 May 2006, the complainant requested the ECA to inform him of the reasons why his name had not been included on the list of the 20 best candidates selected for the tests. In this e-mail(1), the complainant pointed out that the selection procedure had not been organised in a transparent way, because the ECA had "blindly" selected 20 CVs. The complainant further requested information on the selection criteria used by the Selection Board when determining the 20 best candidates and evidence about how the selection board determined that excellence.

Given that he did not receive any reply to his e-mail of 1 May 2006, the complainant further contacted the ECA(2).

On 8 May 2006, the complainant was informed that, on 3 May 2006, his letter had been forwarded to the President of the Selection Board and that the latter would send him a reply.

In the beginning of June 2006, the complainant again contacted the ECA in order to receive a reply. In the complainant’s view, the fact that the ECA had not sent him its reply by the time he complained to the European Ombudsman meant that it "needed time to build a reasonable alibi" for its decision not to admit him to further participate in the selection procedure.

In his complaint to the Ombudsman, the complainant alleged that the ECA had failed to reply to his e-mail of 1 May 2006 in which he had requested information on the selection criteria used by the Selection Board when selecting the 20 best candidates and evidence about how the selection board determined that excellence.

The complainant further submitted the following claims:

1. He should be admitted to the selection procedure and obtain compensation for the damages he had suffered.
2. The selection procedure should be modified in order to prohibit non-transparent recruitment procedures.

THE INQUIRY

The Ombudsman's approach

The Ombudsman decided to open an inquiry into the complainant's case. However, the Ombudsman informed the complainant that, as no prior administrative approaches appeared to have been made to the ECA with regard to his first claim, he had decided to consider this aspect of the complaint as inadmissible on the basis of Article 2(4) of the Ombudsman's Statute and that it would therefore not be covered by his inquiry.

The opinion of the European Court of Auditors

The opinion of the ECA on the complaint was, in summary, as follows:

As regards the complainant’s allegation that the ECA had failed to reply to his e-mail of 1 May 2006, it recognised that it was true that, when the complainant lodged his complaint with the Ombudsman on 12 June 2006, he had not yet received a reply to his e-mail of 1 May 2006. He had only been informed by e-mail of 8 May 2006 that his request had been forwarded to the President of the Selection Board.

By letter dated 12 June 2006, the President of the Selection Board replied to the complainant providing him with additional information concerning the evaluation of his application. However, the letter was returned to the ECA because the complainant no longer lived at the address that he had indicated to the ECA. Once the complainant had communicated his new address, the letter of the President of the Board was re-sent to him immediately.

The ECA pointed out that the fact that it took six weeks to send the reply to the complainant's request did not mean that the ECA needed "time to build a reasonable alibi" as alleged by the complainant in his complaint. In May 2006, the members of the Selection Board were involved in other tasks, which included travelling abroad. Therefore it was unfortunately not possible to organise a meeting of the Board to discuss the complainant's e-mail of 1 May before the beginning of June 2006. The ECA considered that, under those circumstances, the reply to the complainant had been provided within a reasonable time-limit.

As regards the complainant’s claim that the selection procedure should be modified in order to prohibit non-transparent recruitment procedures, the ECA stated that the Selection Board had selected the candidates to be invited to the tests on the basis of their qualifications and professional experience. The criteria were described in detail in the Recruitment Notice. The Recruitment Notice also explained that only the 20 candidates with the best marks, that is, those who best fulfilled the relevant requirements, would be called to the written test and the interview.

This limitation of the number of candidates was due to the fact that experience in other recruitment procedures for temporary and contractual agents had shown that, usually, a very large number of candidates apply for the advertised posts. Since only a very limited number of posts were available at the Legal Service of the ECA, it would not have been reasonable to invite all candidates who fulfilled the minimum qualifications to the test.

The Selection Board closely examined the applications which fulfilled the minimum requirements and marked them on the basis of the qualifications and professional experience of every single candidate. As regards the complainant’s case, the Board noted that, by the closing date for the application, he had completed less than nine months of his traineeship in the Ombudsman's Office. However, given that the complainant had pursued postgraduate studies in political science, the Board allowed him the relevant credit and the complainant was considered to fulfil the necessary minimum requirement of one year of professional experience.

As explained by the President of the Selection Board in his letter of 12 June 2006, on the basis of this evaluation, the complainant was awarded a total of 11 points out of a possible total of 20. On the basis of the same criteria, the lowest mark obtained by those candidates admitted to sit the written test was 16.5 points. In the ECA’s view, these candidates had, by comparison to the complainant, acquired a longer and more varied professional experience related to the nature of the duties described in the Recruitment Notice.

The ECA concluded that both the procedure leading to the decision not to admit the complainant to the test and the decision itself were correct.

The complainant's observations

No observations were received from the complainant by the date set for this purpose.

THE DECISION

1 The alleged failure of the European Court of Auditors to reply to the complainant’s e-mail of 1 May 2006

1.1 In August 2005, the European Court of Auditors (the "ECA") organised a selection procedure for the recruitment of lawyers as temporary and/or contractual agents (group of functions IV) at its Legal Service. The complainant sent his application to the ECA(3). By e-mail of 18 April 2006, the complainant requested information on the outcome of the selection procedure. By letter dated 3 April 2006, which was received by the complainant on 19 April 2006, the President of the Selection Board informed the complainant that, after a comparative examination of the qualifications of all the candidacies declared admissible, the Board had not been able to include him on the list of the 20 best candidates selected for participating in the tests. By e-mail of 1 May 2006, the complainant requested the ECA to inform him of the reasons why his name had not been included on the list of the 20 best candidates selected for the tests. Given that he did not receive any reply, the complainant further contacted the ECA. In his complaint to the European Ombudsman, the complainant alleged that the ECA had failed to reply to his e-mail of 1 May 2006 in which he had requested information on the selection criteria used by the Board when selecting the 20 best candidates and evidence about how the selection board determined that excellence.

1.2 In its opinion, the ECA recognised that when the complainant lodged his complaint with the Ombudsman on 12 June 2006, he had not yet received a reply to his e-mail of 1 May 2006. He had only been informed, by e-mail of 8 May 2006, that his request had been forwarded to the President of the Selection Board. The ECA further stated that, by letter dated 12 June 2006, the President of the Board replied to the complainant providing him with additional information concerning the evaluation of his application. However, the letter was returned to the ECA because the complainant had left the address mentioned in the ECA's file. Once the complainant had communicated his new address, the letter of the President of the Board was re-sent to him immediately. The ECA pointed out that the fact that it took six weeks to send the reply to the complainant's request did not mean that the ECA needed "time to build a reasonable alibi" as alleged by the complainant in his complaint. In May 2006, the members of the Board were involved in other tasks, which included travelling abroad. Therefore, it was unfortunately not possible to organise a meeting of the Board to discuss the complainant's e-mail of 1 May 2006 before the beginning of June 2006. The ECA considered that, under those circumstances, the reply to the complainant had been provided within a reasonable time-limit.

1.3 The complainant made no observations on the ECA's opinion.

1.4 It is good administrative practice for the administration to reply to letters or e-mails it receives within a reasonable period of time and in an adequate way. The Ombudsman also finds it useful to recall that, pursuant to Article 17 of the European Code of Good Administrative Behaviour(4), "[t]he official shall ensure that a decision on every request or complaint to the Institution is taken within a reasonable time-limit, without delay, and in any case no later than two months from the date of receipt. (...)".

1.5 It emerges from the facts at the origin of the complaint that the ECA replied to the complainant by letter dated 12 June 2006, that is, on the same day in which the present complaint was lodged with the Ombudsman, and that was sent to the address that the complainant had provided to the ECA. It further emerges that this letter was returned to the ECA since the complainant had moved in the meantime and that it could be delivered to the complainant only once the ECA became aware of the latter's new address. Given that any delay in serving the ECA's reply on the complainant that may have occurred as a result of the fact that the complainant had not informed the ECA about his change of address could not be attributed to the latter, the Ombudsman considers that the date on which the ECA replied to the complainant was 12 June 2006.

1.6 In his complaint, the complainant alleged that the ECA had failed to reply to his e-mail of 1 May 2006. Given that this reply appears to have been sent in the course of the present inquiry, the Ombudsman considers that what needs to be examined is whether the ECA sent its reply within a reasonable period of time. In this context, the Ombudsman notes that the e-mail in which the complainant asked for information on the reasons why his name had not been included on the list of the 20 best candidates selected for the tests was sent on 1 May 2006. On 8 May 2006, that is, one week later, the ECA informed the complainant that his request had been forwarded to the President of the Selection Board and that the latter would send him a reply. It thus appears that the ECA rapidly acknowledged receipt of the complainant's e-mail and informed him as to how it would be handled. The Ombudsman further notes that the President of the Board replied to the complainant on 12 June 2006. In its opinion, the ECA explained that it had unfortunately not been possible to organise a meeting of the members of the Board before the end of May 2006. The Ombudsman considers that this explanation is not unreasonable. It should be noted that the ECA has in any event sent a substantive reply to the complainant's e-mail within no more than six weeks.

1.7 On the basis of these considerations, the Ombudsman considers that there appears to have been no maladministration on the part of the ECA as regards the complainant’s allegation.

2 The complainant’s claim

2.1 In his complaint, the complainant claimed that (i) he should be admitted to the selection procedure and obtain compensation for the damages he had suffered and (ii) the selection procedure should be modified in order to prohibit non-transparent recruitment procedures.

2.2 In his reply dated 12 July 2006, the Ombudsman informed the complainant that, since no prior administrative approaches appeared to have been made with regard to his first claim, he had decided to consider this aspect of the complaint as inadmissible, on the basis of Article 2(4) of his Statute. The present decision therefore only deals with the complainant's second claim that the selection procedure should be modified in order to prohibit non-transparent recruitment procedures.

2.3 In its opinion, the ECA stated that the Selection Board had selected the candidates to be invited to the tests on the basis of their qualifications and professional experience. The Board closely examined the applications which fulfilled the minimum requirements and marked them on the basis of the qualifications and professional experience of every single candidate. The criteria used in so doing were described in detail in the Recruitment Notice. The Recruitment Notice also explained that the 20 candidates with the best marks, that is, those who best fulfilled the relevant requirements, would be called to the written test and the interview. This limitation of the number of candidates was due to the fact that experience in other recruitment procedures for temporary and contractual agents had shown that, usually, a very large number of candidates apply for the advertised posts. Since only a very limited number of posts were available at the Legal Service of the ECA, it would not have been reasonable to invite all candidates who fulfilled the minimum qualifications to the test. As regards the complainant’s case, the Board noted that, by the closing date for the application, he had completed less than nine months of a traineeship. However, given that the complainant had pursued postgraduate studies in political science, the Board allowed him the relevant credit and he was considered to fulfil the minimum requirement of one year of professional experience. As explained by the President of the Board in his letter of 12 June 2006, the complainant was, on the basis of this evaluation, awarded a total of 11 points out of a possible maximum of 20. On the basis of the same criteria, the lowest marked obtained by those candidates admitted to sit the written test was 16.5 points. In the ECA’s view, these candidates had, by comparison to the complainant, acquired a longer and more varied professional experience related to the nature of the duties described in the Recruitment Notice. The ECA concluded that both the procedure leading to the decision not to admit the complainant to the test and the decision itself were correct.

2.4 The complainant made no observations on the ECA's opinion.

2.5 The Ombudsman understands the complainant’s claim to concern both the procedure followed by the ECA and the substance of the latter’s decision not to admit him to the test.

2.6 The Ombudsman recalls that, according to the established case-law of the Community Courts, Selection Boards have wide discretionary powers in assessing the candidates’ qualifications and practical experience under a competition and that this assessment can only be set aside in case of manifest violation of a rule or principle binding upon the Board.

2.7 As regards the recruitment procedure followed by ECA, the Ombudsman notes that, in its opinion, the ECA stated that it had decided that only the 20 candidates with the highest marks would be admitted to the written test and the interview because, in view of the large number of the applications usually received in recruitment procedures for temporary and contractual agents, it would not have been reasonable to invite all candidates who fulfilled the minimum qualifications of the test. The Ombudsman is of the view that, given that the number of the posts available at the ECA's Legal Service was limited, there is nothing to suggest that the ECA's approach is not covered by the discretionary powers of which the ECA disposes in the area concerned. It should further be noted that the Recruitment Notice clearly described the procedure that the ECA intended to follow.

2.8 As regards the ECA’s decision not to admit the complainant to the test, the Ombudsman notes that the paragraph "Minimum qualifications" of the Recruitment Notice stated that candidates were required to have

"[a]t least one year of professional experience in work related to the nature of the duties to be performed. Account will only be taken of professional experience subsequent to the receipt of the university degree or diploma required to participate in the selection procedure; however, the time taken to obtain an additional qualification related to the nature of the activities will be taken into account".

2.9 It emerges from the ECA’s opinion that the complainant had only nine months of relevant professional experience but that the Selection Board took account of his postgraduate studies in political science and thus considered that the complainant had the necessary minimum professional experience. The Ombudsman further notes that, on the basis of the selection criteria, the Board gave the complainant 11 points and that the lowest mark obtained by those candidates admitted to sit the written test had been 16.5 points. In his letter to the complainant of 12 June 2006, the President of the Board explained that the ECA had received a total of 210 applications and that the candidates had, in general, been extremely highly qualified both academically and in terms of professional experience. In view of the above, the Ombudsman considers that the reasons given by the Board for not allowing the complainant further to participate in the selection procedure appear to be reasonable.

2.10 In these circumstances, the Ombudsman considers that the complainant has not established his claim.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the ECA. The Ombudsman therefore closes the case.

The President of the ECA will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The e-mail to which the complainant referred was not enclosed with his complaint.

(2) The complainant did not specify, in his complaint, the date of this further correspondence with the ECA.

(3) The complainant did not specify the date when he had sent his application to the ECA.

(4) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).