Strasbourg, 18 December 2007

Dear Mr D.,

On 1 December 2005, you made a complaint to the European Ombudsman concerning your non-admission to Competition EPSO/A/16/04.

On 12 April 2006, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 17 July 2006. I forwarded it to you with an invitation to make observations, which you sent on 15 November 2006.

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

THE COMPLAINT

The complainant took part in the pre-selection test for competition EPSO/A/16/04, which was held on 29 October 2004. He subsequently submitted his full application within the deadline of 24 December 2004. On 8 February 2005, he was informed that his application had not been accepted due to the fact that evidence of three years professional experience, as required by point A.II.2 of the Notice of competition, was missing. The relevant section of the Notice read as follows:

"2. Professional experience

Since obtaining the qualification required for admission to the competition, you must have gained at least three years’ full-time graduate-level professional experience relevant to the duties concerned, of which two years directly connected to both team and IT project management. The following will be counted as professional experience:

— duly attested specialist work placements or periods of further training preparing for the duties described at A.I above,

— additional periods of training, studies or research preparing for the duties described at A.I above, provided that, on completion, you obtained a certificate or diploma at least equivalent to that required for admission to the competition.

If the period of the specialist work placement or further training coincides with a period of professional activity, the selection board will take only the period of professional activity into account."

By letter dated 17 February 2005, the complainant requested that his application should be reconsidered. In his view, he had submitted sufficient evidence of three years professional experience. He stated that it did not seem opportune to provide a work certificate from his employer for the purpose of the competition, given that requesting such a certificate from his employer could harm his relationship with the latter. He pointed out that he had enclosed a declaration regarding his work tasks, written by himself, and had further described these work tasks in detail on the application form. He had also enclosed copies of documents containing evidence of further training courses, as well as evidence concerning his work as an assistant at a university.

By letter of 4 March 2005 to the complainant, the Selection Board confirmed its view that the complainant had not fulfilled the necessary requirement referred to above. In particular, the complainant's enclosed declaration regarding his work tasks was found to be insufficient. Failing a reference from his employer, the complainant should have provided copies of his work contract together with photocopies of his first and last pay slip, as indicated in the "Guide for Applicants" for the competition. His work as an assistant at a university had been considered as full-time equivalent, but did not amount to the required three years working experience.

By e-mail of 17 March 2005, the complainant made a second request for reconsideration of his application. By letter dated 1 April 2005, the Chairman of the Selection Board upheld its decision of 4 March 2005.

By letter dated 4 May 2005, the complainant lodged a complaint under Article 90(2) of the Staff Regulations. According to the text of EPSO's decision on his complaint, the complainant's position was the following:

"In his opinion, the means to prove working experience cannot be limited to those stated in the Guide for the Applicant. These means do not have higher probatory value than the ones chosen by him. Besides, he did not know of the Guide, which furthermore has allegedly not been available long enough. The complainant deems to have fulfilled all the admission criteria, even if he might not have submitted sufficient proof. He requests to be readmitted to the competition and eventually to be granted a further deadline to complete his application."

By decision dated 14 September 2005, EPSO, acting as the Appointing Authority, rejected the complainant's Article 90(2) complaint. Its decision was based on the following findings:

[1] "To assist candidates with their application, the European Personnel Selection Office (EPSO) provides them with an online "Guide for applicants". As indicated in the first sentence of the Guide, it serves purely for information purposes. The only text binding on the Selection Board is the Notice of competition.

[2] According to point II.4 of the Guide, the candidate must enclose in his application photocopies of references from previous employers and from the current employer showing that he has the required level and length of professional experience to take part in the competition. He must provide such proof for every period of employment relevant to the competition. In case a candidate were unable to provide an employer's reference for a particular period of employment, a photocopy of the relevant contract(s) of employment, together with photocopies of the first and last pay slip for the period(s) would be accepted.

[3] The Selection Board examines candidates' files to determine whether they meet the conditions laid down in the Notice of open competition. It is its duty to evaluate whether the working experience of a candidate is "duly attested" according to the Notice and it is the candidate's risk to see his application refused if he chooses to 'prove' working experience by other means than those indicated in the Notice and further explained in the Guide.

[4] As to the argument of the complainant that he was ignorant about the Guide, the Appointing Authority notes that the Notice of competition contains several references to it, among them paragraph 1 of point C ("How to apply"), which reads: 'Please refer also to the Guide for Applicants, which can be found on the EPSO website and contains detailed instructions to help you submit you application correctly'.

[5] [The complainant] further claims that the Guide had not been available long enough. He did not have to hand in proof of professional experience than by 24 December 2004 [sic.], the deadline for a full application, whereas the guide had not been available until the 19 April 2004, the closing date for registration. The Appointing Authority notes that candidates were perfectly aware of the fact that, after successful completion of the pre-selection tests, they had to submit their full application with 'evidence of professional experience clearly indicating the starting and finishing dates and the precise nature of the duties carried out' (point C.3 of the Notice of open competition [(1)]) by the closing date for registration. The Guide has therefore been available long enough for candidates to enquire about further details of their application and to prepare the necessary documents.

[6] However, as indicated above, this Guide is only a non-binding instrument to assist candidates in their application. The Appointing Authority stresses that the refusal of the Selection Board to grant [the complainant] access to the competition is not based on the fact that he tried to prove his working experience by other means than those indicated in the Guide, but on the fact that the documents he submitted were found to be insufficient evidence of working experience in the terms of the Notice of open competition. In particular, the candidate's own declaration concerning his professional activity together with individual training certificates cannot be regarded as evidence within the meaning of the Notice. It does by no means have the same probatory value than a photocopy of the employment contract accompanied by photocopies of the first and the last pay slip. Moreover, it does not allow the Selection Board to ascertain the candidate's three years' full-time graduate-level professional experience relevant to the duties concerned, of which two years directly connected to both team and IT project management, as required by point A.II.2 of that Notice."

In his complaint to the Ombudsman, the complainant alleged that EPSO's rejection of his Article 90(2) complaint against the above-mentioned decision was unjustified. In support of his allegation, he made, inter alia, the following arguments:

(i) submission of copies of the employment contract and of the first and the latest pay slip does not serve to prove that a candidate has three years full-time graduate-level professional experience relevant to the duties concerned, of which two years are directly connected to both team and IT project management, since an employment contract is formulated in general terms, and pay slips contain no information as to the work tasks;

(ii) it must be presumed that a candidate does not make false statements in his application;

(iii) since none of the reasons for exclusion from the competition, as stated in the Notice of open competition, apply, the complainant should be admitted to the written test.

Part C, Point III stated the following:

"Scrutiny of applications

The selection board will examine candidates’ files to determine whether they meet the conditions laid down in Title A.II.1, 2, and 3 of this notice. It will then mark the written tests of the candidates who meet all the conditions set out in Title A.II and will invite to the oral test all those who have obtained both the pass mark in written test (d) and one of the highest scores (see B.2). This means that you will automatically be disqualified if:

— you have posted your application after the closing date,

— you have not completed and/or signed the application form,

— you do not meet all the eligibility criteria."

The complainant considered that since he, in his view, fulfilled the admissibility conditions, but was only considered not to have sufficiently proven this, he should be admitted.

(iv) the "Guide for Applicants" (referred to in Part C of the notice of competition), which (inter alia) contained instructions for the submission of the full application, was no longer available at the time when that full application had to be submitted. He was therefore not aware of those instructions at the relevant point in time.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO made the following comments:

As regards proof of professional experience

For competitions of the kind here concerned, the purpose of which is to employ highly qualified staff in accordance with the provisions of the Staff Regulations, a candidate is obliged to present all the necessary documents to enable the Selection Board to determine whether he or she fulfils the admissibility conditions laid down in the Notice of competition.

In the Notice of competition for the competition here concerned, it was made clear that candidates had to enclose relevant certificates in their applications. Such certificates should contain information on the beginning and the end of the activities concerned, as well as the nature of those activities.

In order to help candidates prepare their application documents, for instance in respect to changes in their professional occupation, the relevant point in the Notice of competition was complemented in the Guide for Applications. Thus, the Guide stated that lack of professional certificates could be made up for through submission of photocopies of employment contracts together with the first and the last pay slips.

It has to be emphasised that a recruitment competition is aimed at creating a reserve list of persons who not only have the ability to carry out certain tasks, but who are in fact immediately able to carry such task out. This justifies the requirement that candidates should enclose documents demonstrating that they have actually carried out the kind of tasks associated with the post concerned.

A recruitment competition is not aimed at finding out whether the candidates have sufficient theoretical knowledge. Instead, it is the purpose of a recruitment competition to provide Community institutions with candidates who are ready to carry out the duties described in the Notice of competition, and who are ready to do so from the beginning of their employment.

With regard to the complainant's argument that it had to be presumed that a candidate does not make false statements in his application, it had to be noted that it is incumbent on the relevant person concerned to provide the relevant proof of the actual nature of the professional activities carried out. If the professional activities are carried out in an employment relationship, it is the task of the employer to make the relevant declaration, and not the task of the employee who is not responsible for the description of his or her post.

The logic of this point is reinforced by the fact that candidates who are self-employed may demonstrate their compliance with the condition here concerned by reference to the content of their tax declaration.

As regards the availability of the Guide for Applicants

With regard to the availability of the Guide for Applicants at the time of the electronic registration as opposed to its availability at the time of submission of the full application, it has to be stressed that, according to consistent case-law, the admissibility conditions and all useful information for the submission of applications have to be formulated at the time of publication of the competition.

Thus, at this point in time, all essential points have to be defined in order to allow interested persons to determine whether it is relevant for them to submit an application. To use another system could, in light of the large number of recruitment competitions appearing on the EPSO website at the same time, cause confusion.

In order to give the candidates complete instructions, EPSO decided, after the initiation of the recruitment competition here concerned, that the text of the Guide for Applicants for the various recruitment competitions shall remain on the website until the end of the competition. This is done with a view to giving the candidates the most complete information possible and, by doing so, to remind them of their own duty of care.

The complainant's observations

In his observations, the complainant made, in summary, the following comments:

As regards proof of professional experience

EPSO’s argument that candidates had to provide documents showing that they had in fact carried out the type of tasks associated with the post concerned is not conclusive. EPSO on the one hand emphasises that the aim of the recruitment procedure is to find persons who are not only able to carry out the tasks concerned, but, on the other hand, states that it is not the aim of the recruitment procedure to find out whether candidates have sufficient theoretical knowledge.

EPSO has failed to adequately address the complainant’s argument that, in general, professional experience cannot, apart from its length, be sufficiently demonstrated by the submission of a copy of the employment contract together with copies of the first and the latest pay-slips.

EPSO's statement that applicants should be able to carry out their tasks from the beginning of their employment is new and has no relevance to the complainant’s case.

In rejecting the complainant’s view that it has to be presumed that the applicant makes no false statements, EPSO has stated that it is for the candidate’s employer to provide certification of the tasks carried out. However, this stands in contradiction to the possibility (referred to by EPSO and in the Guide for Applicants) of establishing the required professional experience through the submission of a copy of the employment contract together with the first and the latest salary declarations, since this possibility does not involve submission of any certificate by the employer.

It should be noted, again, that it is not always possible for an applicant to obtain a work certificate from the employer without the latter drawing negative conclusions as to the candidate’s commitment to his or her current place of work.

As regards the availability of the Guide for Applicants

It appears that EPSO has only after the initiation of the recruitment competition here concerned made the text of its Guides for Applicants available until the end of the competition. EPSO does not, however, comment on exactly when its decision to do so was taken and implemented. A reasonable interpretation of EPSO’s comments in this regard would, however, be that the present complaint has, in this respect, been considered justified.

THE DECISION

1 Allegation of unjustified rejection of Article 90(2) complaint

1.1 The complainant took part in the pre-selection test for competition EPSO/A/16/04, which was held on 29 October 2004. He submitted his full application within the deadline of 24 December 2004. On 8 February 2005, he was informed that his application had not been accepted due to insufficient evidence concerning three years professional experience, as required by point A.II.2 of the Notice of competition. The relevant section of the Notice read as follows:

"2. Professional experience

Since obtaining the qualification required for admission to the competition, you must have gained at least three years’ full-time graduate-level professional experience relevant to the duties concerned, of which two years directly connected to both team and IT project management. The following will be counted as professional experience:

— duly attested specialist work placements or periods of further training preparing for the duties described at A.I above,

— additional periods of training, studies or research preparing for the duties described at A.I above, provided that, on completion, you obtained a certificate or diploma at least equivalent to that required for admission to the competition.

If the period of the specialist work placement or further training coincides with a period of professional activity, the selection board will take only the period of professional activity into account."

In order to provide proof of part of his claimed work experience, the complainant submitted a personal declaration containing information regarding that experience. The Selection Board concluded that this did not satisfy the requirement of documentation stipulated in the Notice of competition. In response to his subsequent complaint under Article 90(2) of the Staff Regulations, EPSO, acting as the Appointing Authority, concluded that the decision to exclude the complainant from the competition was correct. In its opinion on the present complaint to the Ombudsman, EPSO has confirmed this decision. In its decision on the complainant's Article 90(2) complaint, EPSO noted that "the documents [the complainant] submitted were found to be insufficient evidence of working experience in the terms of the Notice of open competition. In particular, the candidate's own declaration concerning his professional activity together with individual training certificates cannot be regarded as evidence within the meaning of the Notice" (emphasis added). EPSO referred to Point C.3 of the Notice of competition, which stated that "[y]our application must give full details of your citizenship, studies, training, professional experience and any research you have undertaken. You should also enclose a list of the supporting documents, which should be numbered (copy of a document proving your citizenship, copy of diploma(s) — these copies do not have to be authenticated — and of evidence of professional experience clearly indicating the starting and finishing dates and the precise nature of the duties carried out)" (emphasis added).

1.2 The Ombudsman first remarks that the above-mentioned provisions of Points A.II.2 and C.3 of the Notice of competition were binding on the Selection Board(2), which had the duty to ensure that they are respected. Pursuant to these provisions, candidates had to specify their professional experience in their application, which constituted a personal declaration. In addition, they had to submit, together with their application, appropriate evidence of the professional experience they declared. This second requirement could not reasonably be interpreted as referring to a personal declaration of the kind submitted by the complainant, which, in essence, should already be included in the application. Rather it referred to other kinds of documents, demonstrating the truthfulness of the information given in the application in relation to the professional experience declared therein by the candidate.

It is uncontested that the complainant failed to submit any such documents. Moreover, the complainant does not appear to have made, together with the submission of his application, any specific and duly substantiated arguments showing that it was objectively impossible or excessively difficult for him to provide these documents. In this regard, the complainant has not contested the fact that he was able to provide a copy of his employment contract and his salary slips, namely of documents which could show the existence, duration and basic content of the employment relationship. He has instead argued that these documents would not be sufficient. Nevertheless, it would have been for the Selection Board to evaluate the adequacy of these documents and whether something more was required, while also taking into account arguments put forward by the candidate to the effect that it was objectively impossible or excessively difficult for him to provide additional supporting documents. As regards this last issue, the complainant suggested, for the first time in his request for consideration of the rejection of his application, that it was not convenient for him to request a relevant certificate from his employer, since this could harm his employment relationship. However, this statement, apart from its untimeliness, does not amount to a specific and duly substantiated argument showing that it was objectively impossible or excessively difficult for the complainant to provide the supporting documentation required by the Notice of competition.

1.3 In light of the above, the Ombudsman concludes that the Selection Board was justified in considering that the complainant had failed to comply with the requirements of the Notice of competition concerning the submission of evidence regarding the possession of three years of professional experience. Moreover, the Notice of competition and, more generally, principles of good administration did not require that, in such a case, the Selection Board request from the applicant to remedy this shortcoming, which, in and of itself, was a valid basis for the rejection of his application. The fact that Part C, Point III, of the Notice of competition did not explicitly provide for that cannot be considered as suggesting otherwise. As a result, the complainant's argument to the contrary is not sustained.

1.4 On the basis of the above, the Ombudsman finds no instance of maladministration corresponding to the complainant's allegation(3).

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, the Ombudsman finds that EPSO’s decision to reject the complainant’s Article 90(2) complaint does not constitute instance of maladministration. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) "3. Full application

After the preselection tests have been marked, the candidates who obtain one of the highest marks overall for preselection tests (a), (b) and (c) and the pass mark for each of these tests will be asked to print and complete the full application form which will be available on the website (3) in their EPSO profile and send it in by the closing date (10).

Documents to enclose with the application form

Your application must give full details of your citizenship, studies, training, professional experience and any research you have undertaken. You should also enclose a list of the supporting documents, which should be numbered (copy of a document proving your citizenship, copy of diploma(s) — these copies do not have to be authenticated — and of evidence of professional experience clearly indicating the starting and finishing dates and the precise nature of the duties carried out)."

(2) Cf. Case F-12/05 Tas v Commission judgment of 11 July 2006, not yet published in the ECR, paragraph 43, citing Order of the Court of First Instance in Joined cases T-95/00 and T-96/00 Tamara Zauer-Gora and Danielle Dubigh v Commission ECR 2001 p I-A-79, p. II-379, paragraph 47; see also judgments of the Court of First Instance in Case T-139/00 Laurent Bal v Commission ECR 2002 p. I-A-33; page II-139, paragraphs 35, and Cases T-357/00, T-361/00, T-363/00 et T-364/00 Martinez Alarcón e.a. v Commission, ECR 2002, p. I-A-37 and p. II-161, paragraph 61.

(3) The Ombudsman has taken note of the complainant's and EPSO's remarks and arguments made in relation to the Guide for Applicants. In light, however, of his analysis in points 1.2 and 1.3 of the present decision, he does not consider it necessary to examine them when assessing the merits of the complainant's allegation.