The background to the complaint

1. The complainant participated in Open Competition EPSO/AD/250/13 (AD 6) in the field of food safety. In late June 2013, he was informed that he had not passed the (first phase of the) so-called 'talent screener' test and was thus excluded from the competition.

2. In late January 2014, the complainant lodged a complaint with EPSO. He contended that, following the Civil Service Tribunal's ruling in the Glantenay[1] case, the 'talent screener' test is unlawful, since it is based on the self-assessment of candidates and not on the assessment of Selection Boards. He added that the test is thus unsuitable for selecting the best candidates and provided certain calculations in support of his position.

3. By decision of mid-February 2014, EPSO rejected the complainant's complaint as inadmissible. It understood that the complaint was a complaint under Article 90(2) of the Staff Regulations and that the complaint was lodged after the statutory deadline of three months following the notification of the decision negatively affecting the complainant. Moreover, EPSO stated, in relation to the complainant's reference to the Glantenay case, that a judgment annulling a decision can neither reopen nor prolong the applicable appeal deadlines for the benefit of the parties which omitted using them (Case C-15/73 Schots-Kortner v Council[2]).

The inquiry

4. The Ombudsman's preliminary assessment was that EPSO's reply regarding the principle that Court judgments only applied to the persons directly involved in those proceedings ( the principle that a court judgment applies ratione personae) appeared to be overly formalistic and in any event did not take into account that candidates in EPSO competitions, apart from being able to bring Court proceedings, have a fundamental right to complain to the European Ombudsman which they may exercise within two years of the date on which the facts became known to them. Therefore, the Ombudsman opened an inquiry into the following allegation and the related claim.

Allegation:

EPSO wrongly excluded the complainant from Open Competition EPSO/AD/250/13, given that its decision is not in line with the Court's judgment in Joined Cases F-23/12 and F-30/12 Glantenay v Commission.

Claim:

EPSO should either readmit the complainant to the competition by inviting him to the assessment centre or, alternatively, organise an additional competition.

5. In the course of the inquiry, the Ombudsman received the opinion of EPSO on the complaint and, subsequently, the comments of the complainant in response to EPSO's opinion. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Alleged wrongful exclusion of the complainant from the Open Competition

Arguments presented to the Ombudsman

6. In its opinion, EPSO said that the Selection Board's decision to exclude the complainant from the Open Competition was taken before the Civil Service Tribunal's Glantenay judgment (while the Glantenay judgment applied to a competition which the complainant did not take part in, it concerned precisely the same point of principle raised in the present case). The Selection Board's decision was made in good faith on the basis of the law applicable at the time, and for this reason EPSO could not take into account any conclusions stemming from that ruling. Therefore, the complainant's allegation was unjustified.

7. EPSO noted that what the complainant was essentially requesting was to be granted the same benefits as the successful applicants in the Glantenay case, who obtained the annulment of the decision excluding them from the competition in which they had taken part. However, the complainant had not challenged the decision of the Selection Board excluding him from the competition, given that he did not lodge an administrative complaint within the applicable statutory deadline, which expired in late September 2013, that is, ten days after the Court's judgement. EPSO likewise observed that all information concerning an administrative complaint is clearly mentioned in point 6.5 of the Guide to Open Competitions[3], which is an integral part of the Notice of Open Competition.

8. EPSO furthermore referred to the Ombudsman's conclusions in the cases 514/2012/DK and 2045/2012/(RA)DK, where the Ombudsman agreed with EPSO with regard to the consequences of Court rulings on complaints submitted to her on the same grounds as those pleaded in the Court proceedings. It quoted the following paragraph of the Ombudsman's decisions: "[The Ombudsman] agrees with EPSO's position that complainants to the Ombudsman should be granted the same benefits as successful applicants in court cases dealing with the same issue, provided that the complainants submit their complaints to the Ombudsman before the court delivers judgment on the cases before it[4]"(emphasis added).

9. In EPSO's view, it follows that if a complaint was submitted to the Ombudsman after the Court ruling, the complainant who had omitted to make use of the available legal remedies within the applicable appeal deadlines may not rely on the ruling to claim the same benefits as the applicants in the Court procedure. EPSO stressed that the complainant had not submitted an administrative complaint to EPSO within the applicable statutory deadline, despite the fact that the deadline was still open at the time when the Civil Service Tribunal made its ruling in the Glantenay case. Furthermore, EPSO argued that he did not complain to the Ombudsman until several months after the judgment.

10. In his observations, the complainant equally quoted from the Ombudsman's decisions in the cases 514/2012/DK and 2045/2012/(RA)DK, where "the Ombudsman concluded that EPSO failed to check, at the first stage of the Talent Screener Phase, that the answers of all candidates were accurate. She noted that the applicants in the above-mentioned court cases were granted an annulment of the decision excluding them from the competition. The Ombudsman considers that the complainant in the present case, who turned to the Ombudsman for help, should be treated in an equal manner". In the complainant's view, this text passage establishes that EPSO had committed maladministration.

11. The complainant also pointed out that, while it is not surprising that EPSO wishes to interpret the legal remedies narrowly as merely referring to a complaint submitted under Article 90 of the Staff Regulations, he had submitted his complaint to the Ombudsman within the two years' time-limit, as explicitly set out in Point 6.6 of the Guide to Open Competitions. He further stated that, in its Glantenay judgment, the Civil Service Tribunal had rejected the plea of inadmissibility on temporal grounds, stating that "[a]s long as the applicants applications had not been rejected by the Selection Board, they could not be sure whether they had an interest in bringing proceedings against the competition notice, so that they cannot be criticised for not having contested the competition notice within the time-limits provided for in Articles 90 and 91 of the Staff Regulations".

12. The complainant further argued that the ten days which had passed between the Tribunal's ruling and the expiry of the administrative appeal were sufficient for EPSO to decide to extend the time-limit by another three months from the day of the judgment, in order to safeguard the interests of candidates. However, requiring candidates to lodge an Article 90 complaint within that same timeframe was unreasonable, even more so if one considers the fact that it took EPSO approximately half a year to provide an opinion to the Ombudsman in the case at hand. Also, it would not really have been possible to appeal the underlying matter before, as EPSO would simply have referred to the competition procedure as set out in the Notice of Open Competition.

13. What is more, the complainant expressed his doubts about the Ombudsman's concluding assessment in the cases 514/2012/DK and 2045/2012/(RA)DK referred to by EPSO in its opinion[5], asking for clarifications as regards the rationale behind the Ombudsman's differentiation between candidates who had turned to the Ombudsman with a complaint before the Glantenay ruling, on the one hand, and those who had submitted a complaint to her after the judgment, on the other hand, as long as they had exhausted the available legal remedies.

14. Finally, the complainant mentioned that, regardless of the Tribunal's judgment, EPSO appears not to have changed approach as regards the 'talent screener' test, as the last Open Competition EPSO/AD/293/14 shows, where the same unlawful procedure is applied.

15. Against this background, the complainant maintained his allegation and the related claim.

The Ombudsman's assessment

16. The Ombudsman notes that while candidates in staff selection competitions can choose to use the appeal mechanism under Article 90 of the Staff Regulations, they are not required to do so. As such, the arguments of EPSO relating to the complaint being time-barred, because it was not lodged within the three-month deadline set out in Article 90(2) of the Staff Regulation, are not convincing. The complainant was entitled to bring the complaint to the Ombudsman within 2 years of the alleged maladministration. However, as will be noted below, the possible remedies that can be explored by the Ombudsman will naturally be limited if a complainant waits a significant period of time to bring a complaint to the attention of the Ombudsman.

17. The complainant was excluded from the Open Competition EPSO/AD/250/13 on the basis of the results obtained in the first phase of the 'talent screener'. Under this selection method, the candidates had to answer 'yes' or 'no' to nine questions about their academic qualifications and professional experience. They were also asked to justify their answers by providing further details. The Selection Board gave a weighting to each question (from 1 to 3). Every 'yes' answer was awarded points on the basis of the weighting. The maximum number of points the candidate could obtain was 33. On the basis of the results, obtained by the candidates, the Selection Board set the pass mark at 29 out of 33 points.

18. In the second phase, the Selection Board assessed the detailed explanations given by the candidates who had obtained the pass mark, and awarded from 0 to 4 point for each weighed question. The complainant obtained 24 points in the first phase of the 'talent screener' and therefore did not pass to the second phase, where his answers would have been assessed by the Selection Board.

19. There is no doubt that such a selection method is problematic. The Court stated, in the Glantenay judgment, that under this selection method "a candidate could find himself eliminated simply because other candidates had ticked certain questions as a result of interpreting the criteria too much to their own advantage, misunderstanding the questions or assessing the value of their diplomas or professional experience incorrectly, since each question asked calls for a highly subjective assessment by the candidate of the relevance of his diplomas and professional experience.[6]" It concluded that a competition notice, including such a selection method, must therefore be regarded as unlawful[7]. Advancement to the second phase does not depend only on actual academic qualifications and experience, but also on the possibly inaccurate answers, provided by other candidates. Even though they may erroneously answer 'yes' to a question, they are awarded points, which are then taken into account when the Selection Board decides on the pass mark. The system thus results in an unfair and unequal treatment of candidates.

20. In the Ombudsman's view, there is thus no doubt that the exclusion of the complainant based on the first phase of the 'talent screener' constituted maladministration.

21. However, as regards whether, in the present case, EPSO should have granted the complainant's request to be readmitted to the competition, the Ombudsman notes that the complainant was notified of the exclusion from the competition on 25 June 2013. He complained to EPSO in January 2014, and then only after the Glantenay judgment, at which stage the competition in question had progressed to another stage. He cannot reasonably have expected EPSO to readmit him to a competition at such a late stage.

22. The Ombudsman notes that in her decisions in cases 514/2012/DK and 2045/2012/DK she took the view that candidates who had complained to EPSO immediately after being excluded from a competition on the basis of a talent screener, and had then immediately brought their case to the Ombudsman, should be readmitted to the competition. EPSO agreed to readmit those candidates. The Ombudsman finds that her position in those cases must, however, be distinguished from the present case. It seems only reasonable that a complainant who decides to complain to the Ombudsman in good time should be readmitted to an ongoing competition. This must also apply even where EPSO's acceptance of having made an error comes many months, or even years, later following a court ruling which supports the views put forward by complainants in their timely complaint to the Ombudsman. A complainant who turns to the Ombudsman should not, in those circumstances, be treated less favourably simply because he or she opted to seek redress from the Ombudsman, instead of turning to the Court. However, the same does not apply when a candidate does not, in a timely manner, submit a complaint to EPSO. In such circumstances, EPSO is not even given the opportunity to correct its error in the on-going competition.

23. As regards whether EPSO should organise a new competition for the complainant, the Ombudsman considers that the appropriate remedy in the present case would have been for the complainant to have presented the issue of the irregular talent screener to EPSO in good time thereby allowing the complainant in the present case, as was the case for the complainants in cases 514/2012/DK and 2045/2012/DK, to re-enter that same competition. Given that such a remedy was open to the complainant, had he complained to EPSO in good time, there are no grounds therefore to consider his claim that EPSO should organise a new competition for him.

Conclusion

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

The exclusion of the complainant from Open Competition EPSO/AD/250/13 on the basis of the 'talent screener' constituted maladministration.

The complainant's claim cannot be upheld.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 22/10/2015

 

[1] Joined cases F-23/12 and F-30/20, Glantenay and Others v Commission, judgment of 16 September 2013, not yet published in the ECR

[2] Case C-15/73, Schots-Kortner and others v Council, [1974] ECR-177,

[3] Published in Official Journal C 270 A of 7 September 2012 and available on the EPSO website.

[4] Decision of the European Ombudsman closing the inquiry into complaint 514/2012/DK against EPSO, point 10 (available at: http://www.ombudsman.europa.eu/cases/decision.faces/en/58055/html.bookmark) and Decision of the European Ombudsman closing the inquiry into complaint 2045/2012/DK against EPSO, point 11 (available at: http://www.ombudsman.europa.eu/cases/decision.faces/en/58009/html.bookmark)

[5] See point 8 further above.

[6] Joined cases F-23/12 and F-30/20, paragraph 74

[7] Joined cases F-23/12 and F-30/20, paragraph 76