The background to the complaint

1. This case concerns a selection procedure for the recruitment of a contractual agent in function group IV at the Commission's Directorate-General for External Relations ('DG RELEX'). The selected candidate was to be hired in the category 'type (b) contract staff'.

2. The complainant is a civil servant of the Commission. In September 2007, the office of human resources management of DG RELEX asked the local staff committee (CLP) to nominate one of its members to participate in a selection panel for the recruitment of contractual agents. The CLP nominated the complainant.

3. The selection panel was convened for 11 October 2007, and was supposed to interview four candidates for three different vacant posts. In addition to the complainant, the selection panel was composed of two persons from the operational side of DG RELEX (Mr R and Mr D) and one from that DG's office of human resources management (Mrs M).

4. The first interview concerned the post of 'policy desk officer; horizontal co-ordinator' - contractual agent in function group IV (the 'vacant post'). The 'job description' specified, amongst other requirements, that the successful candidate should have a good level of both French and English as regards comprehension and reading as well as verbal and written expression. According to the 'job description', work experience of at least three years was desirable. Only one candidate was invited to an interview for this post. The complainant received the relevant job description and the candidate's curriculum vitae several days in advance. He noted that, in his curriculum vitae, the candidate described his language skills as "English - mother tongue" and "French - strong comprehension, basic conversational and written ability".

5. The selection panel participants give different versions of events during and after the interview that was held on 11 October 2007. However, it is undisputed that, as a result of disagreements between the complainant and one or more of the other selection panel participants on the evaluation of the candidate's performance, the deliberations were interrupted and the remaining three interviews scheduled for that day were cancelled. Later that day, the complainant sent an e-mail marked as confidential to a functional e-mail address at DG RELEX, in which he outlined the irregularities that, in his view, had occurred.

6. On 12 October 2007, Mrs M sent an e-mail from a functional e-mail address to the CLP and DG ADMIN concerning the recruitment procedures that had been scheduled for 11 October 2007. The CLP was asked to designate a new observer "for reasons that would be subsequently explained".

7. On 15 October 2007, DG RELEX sent an e-mail to the complainant, the CLP, the selection panel participants and some other Commission officials. A report entitled "Panels de séléction d'agents contractuels organisés par la DG RELEX Bruxelles, 11 octobre 2007" ('the note of 15 October 2007') was attached to the e-mail. According to the e-mail, the report had been approved by all the panel participants, save for the complainant. According to the report, the complainant's attitude towards the candidate was "peu aimable", had created "une atmosphère désagréable mettant mal à l'aise l'ensemble des personnes présentes" and had become "de plus en plus agressive". According to the note, the attitude of the complainant during the deliberations was one of "désaccord systématique".

8. On 24 October 2007, using the 'reply to all' e-mail function, the complainant sent his comments on the note of 15 October 2007, and marked his e-mail as confidential.

9. On 12 December 2007, DG RELEX informed the complainant that he had been removed from the selection panel.

10. On 23 January 2008, acting in accordance with Article 22a of the Staff Regulations, the complainant informed the Commission's Secretary-General and the European Anti-Fraud Office ('OLAF') of the irregularities which, in his view, had tainted the selection procedure.

11. On 18 February 2008, OLAF interviewed the complainant. Subsequently, on 24 November 2008, OLAF informed the complainant that his request based on Article 22a of the Staff Regulations fell outside its competence.

12. On 11 March 2008, the complainant submitted a complaint under Article 90(2) of the Staff Regulations against DG RELEX's decision to cancel the selection panel and to remove him (the 'first staff complaint').

13. On 16 May 2008, the Commission informed the complainant that his first staff complaint was inadmissible. It argued that, given that he was only an observer, pursuant to Article 8(3) of the General implementing provisions governing the engagement and use of contract staff at the Commission (GIP), and not a member of the selection panel, his legal position was not negatively affected.

14. On 11 February 2009, the complainant submitted a request for assistance pursuant to Article 24 of the Staff Regulations in view of what he considered to be defamatory statements contained in the note of 15 October 2007.

15. In its reply dated 4 March 2009, the Commission noted that a significant part of this request was almost identical to his first staff complaint and took the view that he was trying to obtain a new reply to his first staff complaint. The Commission stressed that an act adversely affecting him could only be subject to one complaint under Article 90(2) of the Staff Regulations. As to the remaining arguments, the Commission concluded that the note of 15 October 2007 did not contain any threats, insults or defamatory statements and therefore rejected his request for assistance.

16. On 3 June 2009, the complainant appealed against the decision rejecting his request for assistance by submitting a complaint pursuant to Article 90(2) of the Staff Regulations (the 'second staff complaint'). He argued that the Commission had not examined the matter with sufficient diligence.

17. In its reply of 3 July 2009, the Commission rejected the second staff complaint as unfounded, referring to the reasoning set out in its reply of 4 March 2009.

18. On 11 February 2009, the complainant wrote to the Commission's Secretary-General in order to inform her that OLAF had decided not to investigate the matter. He submitted that responsibility to investigate his request based on Article 22a of the Staff Regulations fell upon the Secretariat-General, DG ADMIN or the Commission's Investigation and Disciplinary Office ('IDOC').

19. On 24 March 2009, IDOC was authorised to open an investigation and, on 27 March 2009, took a statement from the complainant.

20. On 1 July 2009, and on the basis of IDOC's investigation report, the Director-General of DG ADMIN decided to close the case without any disciplinary follow-up on the grounds that the selection procedure had been carried out in compliance with the applicable rules.

21. On 30 September 2009, the complainant lodged another complaint under Article 90(2) of the Staff Regulations against the decision of 1 July 2009 (the 'third staff complaint').

22. By letter dated 15 October 2009, the Commission declared the third staff complaint inadmissible.

23. On 15 February 2011, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

24. The Ombudsman decided to open an inquiry into the following allegations and claim.

Allegations:

1. The Commission failed to ensure that the relevant selection procedure for a contractual agent in DG RELEX was properly carried out.

2. The Commission failed properly to handle the complainant's request for assistance under Article 24 of the Staff Regulations.

3. The Commission failed properly to handle the administrative redress procedure initiated by the complainant under Article 22a of the Staff Regulations.

Claim:

The Commission should (i) admit its errors, (ii) revoke the decisions reached in the administrative proceedings under Articles 22a and 24 of the Staff Regulations, (iii) delete statements defaming the complainant from its files; and (iv) take measures to improve the administrative procedures under Articles 22a and 24 of the Staff Regulations, especially by ensuring that they are carried out independently, e.g., by the Secretariat-General.

25. The Ombudsman noted that the first allegation and the claim concerning the recruitment procedure in DG RELEX were submitted to him more than two years after the relevant issues came to the complainant's attention. Therefore, they were inadmissible pursuant to Article 2(4) of the Ombudsman's Statute. The same applied to the complainant's allegation concerning the handling of his first staff complaint. However, the Ombudsman took the view that the way in which the Commission carried out its recruitment procedures was a matter that was clearly of public interest. Bearing this in mind, the Ombudsman decided that the relevant parts of the complaint merited an inquiry. For this reason, the Ombudsman opened own-initiative inquiry OI/6/2011/VL to cover the first allegation and the claim (in the form set out in the preceding paragraph).

26. It is useful to note that the complainant also criticised the fact that the Commission had rebuked him for having breached the rules on the protection of personal data. However, the Ombudsman took the view that there were insufficient grounds to inquire into this issue, given that it had already been considered by the European Data Protection Supervisor. Given the Commission's broad discretion in disciplinary matters, the Ombudsman reached the same conclusion with regard to the complainant's claim that the Commission should hold the persons responsible for the alleged maladministration liable.

The inquiry

27. On 24 May 2011, the Ombudsman opened the present inquiry and asked the Commission for an opinion.

28. On 5 September 2011, the Commission provided its opinion.

29. On 28 September 2011, the Ombudsman informed the Commission that it was necessary to inspect the relevant file held by the Commission.

30. On 18 October 2011, the complainant submitted his observations on the Commission's opinion.

31. On 9 November 2011, the Ombudsman's representatives carried out an inspection.

32. On 24 November 2011, a copy of the inspection report was sent to the complainant with an invitation to submit observations, which he did on 14 December 2011.

The Ombudsman's analysis and conclusions

Preliminary remarks

33. In its opinion, the Commission highlighted the fact that three years and four months had passed between the lodging of the first staff complaint and that of the complaint to the Ombudsman. In this respect, it is useful to recall that it was for this very reason that the Ombudsman opened own-initiative inquiry OI/6/2011/VL (see also paragraph 25 above), which, unlike complaints-based inquiries, is not subject to any time limitation.

34. Even though the present inquiry concerns the procedure for the recruitment of an individual person, it should not be misunderstood as being directed against the candidate or the participants in the selection panel. In fact, the Ombudsman's mandate is limited to investigating instances of maladministration by the institutions, bodies, offices and agencies of the EU, and not the individuals working for them.

35. In its opinion, the Commission referred to the report drawn up by IDOC, which allegedly addressed all the arguments raised by the complainant. However, the Commission marked the said report as confidential. Therefore, the Ombudsman cannot refer to it for the purposes of the present decision.

A. Alleged failure to ensure that the relevant selection procedure was properly carried out and the corresponding part of the claim

Arguments presented to the Ombudsman

General comments made by both parties

36. According to the complainant, the first half of the interview with the candidate was held in English. One of the selection panel members then spoke in French and asked the candidate to elaborate on the main institutions of the EU. The complainant was very surprised that such a basic question was chosen to test the knowledge of a candidate for the post of administrator and even more so when the candidate asked to be allowed to answer in English. According to the complainant, the candidate stated that he did not feel at ease using French. In view of the language requirements in the job description, the complainant considered it appropriate to insist that the question be answered in French. The candidate had difficulty naming the EU institutions in that language. In the complainant's view, the interview confirmed the candidate's self-assessment of a basic oral command of French and that he thus did not meet the language requirements.

37. The complainant added that he wanted to test the candidate's knowledge of the policy areas mentioned in the job description. Since the candidate had mentioned the area of environmental policy only, the complainant pointed out that security and migration policies were also indicated in the job description and asked a question about a recent Commission initiative on migration and the fight against illegal immigration. The candidate was not able to answer this question and admitted that he did not have any specific knowledge of policy areas other than the environment.

38. According to the complainant, the differences of opinion between the selection panel participants became obvious during the deliberations. While the other participants evaluated the candidate's performance as "good" or "excellent" on all counts, the complainant insisted that it should be rated as "average" or "good". The complainant's overall impression of the interview was that the other participants wanted the candidate to succeed and thus deliberately ignored shortcomings in his language skills.

39. In its opinion, the Commission argued that IDOC had dealt with all the arguments advanced by the complainant, which were in fact the same as the ones submitted to the Ombudsman. According to the Commission, IDOC concluded that the recruitment procedure in question had been handled correctly and in line with the applicable legal provisions, and that none of the alleged irregularities had been established. Moreover, the cancellation of the selection panel of 11 October 2007 had been decided upon by its members in the interest of the service, without the complainant's rights having been infringed.

The complainant's supporting arguments

40. In support of his allegation, the complainant put forward the following arguments: (i) he was invited to participate in the selection panel, but the respective functions of the panel participants were not specified; (ii) only one candidate was invited to attend an interview, and, on the basis of his CV, this candidate did not fulfil the job description requirements with regard to the necessary work experience and language skills; (iii) the panel was not sufficiently prepared for the interview, it deliberated during the interview, criticised the complainant in front of the candidate and tried to discourage him from asking questions; (iv) the other panel members tried to prevent the complainant from examining the candidate's language skills by arguing that, as a citizen, he had the right to make use of a language of his choice; (v) the complainant was unfairly removed from the selection panel; (vi) no proper minutes or report of the relevant interview were drawn up, the complainant was not allowed to sign any such document, and the other panel members' comments were incorrect and contradictory; (vii) the selection panel was convened to hold the interviews that had been cancelled without informing the complainant, and this in spite of his explicit requests to be informed; (viii) the selection panel proposed a candidate who was not eligible for the vacant position; and (ix) the administration divulged correspondence without respecting the rules of confidentiality.

(i) The alleged failure to specify the respective functions of the panel participants

41. The Commission said that the panel had to decide by consensus or, if necessary, by majority. In the case of a tie, the vote of the chairperson was decisive. As regards the complainant's role, the Commission emphasised that the complainant was nominated as an observer pursuant to Article 8(3) of the GIP and that the curricula vitae of the candidates were transmitted to the panel participants by the chairwoman (that is, Mrs M).

42. During the inspection, the Ombudsman's representatives queried why, if the complainant was as an observer and could not take part in the voting, the original selection panel convened for 11 October 2007 was cancelled. The Commission's representatives explained that the other members of the selection panel at the time felt that it was not possible to continue with the panel's work due to what they perceived as the obstructive attitude of the complainant.

43. In his observations, the complainant argued that the Commission had a strange understanding of the role of observers that would prevent them from checking anything that has been previously tested.

(ii) The interviewing of only one candidate who, on the basis of his curriculum vitae, allegedly did not fulfil the job description requirements with regard to the necessary work experience and language skills, (iv) the allegation that the complainant was prevented from examining the candidate's language skills, and (viii) the argument that the selection panel proposed a candidate who was not eligible for the vacant position

44. The Commission pointed out that none of the other members of the selection panel shared the complainant's views as regards the candidate's linguistic and professional competences. Furthermore, there was no provision in Article 8 of the GIP that would have required the selection panel to invite more than one candidate for an interview.

45. According to Article 8(2)(a) of the GIP, if no candidate can be found on the list drawn up pursuant to Article 5(1)(g)[1] of the GIP, the service concerned selects the candidates to be invited from amongst the candidates who have been listed in the database referred to in Article 5(1)(d)[2]. It follows from those provisions that candidates included in that database had already been tested as regards, among other things, their linguistic ability. The purpose of the interview held on 11 October 2007 was thus to test the candidate's professional and personal competences.

46. The Commission added that, contrary to the complainant's allegations, not only could he put questions to the candidate in French, but another member of the panel did so too. The disagreement as to the assessment of the candidate's linguistic competence then arose between the complainant and all the other panel participants.

47. During the inspection, the Ombudsman's representatives noted that the members of both the selection panel of 11 October 2007 (save for the complainant) and that of 18 October 2007 (which the complainant was not invited to form part of) took the view that the candidate's knowledge of French was 'good'. This conclusion appeared to be based on the candidate's performance during the interviews. Nevertheless, the job description also required candidates to have a good level of written French. In his curriculum vitae, the candidate indicated that he had "basic conversational and written ability". The Ombudsman's representatives queried whether this ought not to have given rise to questions.

48. In response, the Commission's representatives explained that job descriptions were documents intended to set out the requirements for specific posts, which contained a standardised list of the required and/or desirable characteristics such as educational background, professional qualifications, experience, technical knowledge, competences and social skills. The Commission's representatives stated that once issued, job descriptions are not regularly updated, and only the Heads of Units seeking to fill a vacancy actually know what kind of profile is really needed. It was possible that, in the present case, the profile of the employee sought did not require him to have a good overall level of French. A mistake may have been made in that the job description had not been updated to reflect this. This was an unfortunate, but frequent occurrence. The Commission's representatives also noted that, in the present case, knowledge of French was only one among many other required or desirable skills and competences and that several other requirements indicated in the job description were not tested or were not taken into account (for example, attendance at internal training sessions).

49. The complainant argued that the Commission should clarify whether the candidate's knowledge of French was good (as claimed previously) or whether checking it was procedurally incorrect.

50. He stressed that, in its opinion, the Commission suggested that it was illegal to question the candidate about his linguistic abilities, whereas it is clear from the inspection report that the Commission admitted its superficial approach to such issues, even in other recruitment procedures.

51. The complainant contended that the Commission's argument, that the candidate's linguistic ability had been tested, could not stand because the Ombudsman's representatives had established that this was not the case.

52. The complainant said he was astonished to read how the Commission's representatives had explained the deficiencies of their procedures as regards updating job descriptions.

(iii) The panel’s alleged insufficient preparation for the interview, the arguments that the panel deliberated during the interview itself and that the complainant was discouraged from asking questions

53. The Commission argued that the chairwoman of the selection panel, transmitted the curricula vitae of the candidates for the scheduled interviews to the members of the selection panel as well as other information allowing them to prepare for the interviews. Pursuant to the note of 15 October 2007, it was only after the interview, that is, during the deliberations, that the differences of opinion between the members of the selection panel manifested themselves.

54. The complainant did not put forward any specific observations in respect of this argument.

(v) The allegedly unfair removal of the complainant from the selection panel and (vii) the argument that the selection panel held the interviews that had been cancelled without informing the complainant and in spite of his explicit requests to that effect

55. According to the Commission, it was indisputable that on 12 October 2007 the selection panel asked the CLP to nominate another observer for the selection panel. It was thus for the CLP to inform the complainant of his replacement. The Commission said that, contrary to the appointment of members of selection boards, who are appointed for the entire duration of a competition, the work of the members of a selection panel for the recruitment of contractual agents is limited to the specific interview which they are asked to conduct and it is possible to set up a different panel for each interview.

56. A selection panel enjoys wide discretionary power in performing its work. Therefore, nothing prevented the members of the panel from cancelling or postponing an interview if this was in the interest of the service, of the institution or of the candidates.

57. IDOC considered that no irregularities or maladministration had taken place as regards the removal of the complainant from the selection panel.

58. The complainant argued that, even if the selection panel had broad discretion, this did not allow it to exclude an 'uncomfortable' dissenting member (or observer) and to leave him in a position of uncertainty about his role for weeks.

(vi) The alleged failure to draw up a proper report and meeting minutes and the alleged incorrect and contradictory comments of the other panel participants

59. The Commission pointed out that the complainant could not seriously contest the fact that (i) on 15 October 2007 a report of the interview was communicated to DG ADMIN; (ii) all the members of the panel save for the complainant had considered that the document correctly described how the interview was conducted; and (iii) the complainant's e-mail of 11 October 2007, sent following the interview and outlining his point of view, was attached to the said report.

60. The complainant did not put forward any new observations in respect of this argument.

(ix) The alleged disclosure of correspondence in breach of the rules on confidentiality

61. The Commission pointed out that the note of 15 October 2007 did not contain any information which could have been protected by the confidentiality rules applicable to the work of the selection panel or to the candidates themselves. In any case, the report was sent to recipients who had to be informed about the reasons for the cancellation of the selection panel and for the removal of the complainant. These were the CLP, which was asked to appoint a new observer for the selection panel, and the competent unit of DG ADMIN, which was responsible for the appointment of contractual agents.

62. The complainant did not put forward any specific observations in respect of this argument.

The Ombudsman's assessment

(i) The alleged failure to specify the respective functions of the panel participants

63. It is clear from Article 8(3) of the GIP that the CLP was entitled to designate a person to attend the meetings of the selection panel as an observer (and not as a member). In view of the complainant's experience and given that he was nominated by the CLP, the complainant could have been expected to know that his role was merely that of an observer. The fact that the selection panel appears to have allowed the complainant to put questions to the candidate is not incompatible with his participation as an observer.

64. As for the role of the chairperson, the situation is less clear. In its opinion, the Commission referred to Mrs M as the chairwoman. However, there is nothing in the documents leading up to the relevant interview or in the note of 15 October 2007 that would confirm that she was, in fact, the chairwoman. Moreover, it is not clear whether Article 8(3) of the GIP would have allowed Mrs M to chair the relevant selection panel. However, given that the status of the chairperson is not essential to the case in question, the Ombudsman considers that there is no need to pursue this matter further.

(ii) The interviewing of only one candidate who, on the basis of his curriculum vitae, allegedly did not fulfil the job description requirements with regard to the necessary work experience and language skills, (iv) the allegation that the complainant was prevented from examining the candidate's language skills, and (viii) the argument that the selection panel proposed a candidate who was not eligible for the vacant position

65. The Ombudsman agrees that the relevant rules did not oblige the Commission to invite more than one candidate for an interview. It should however be borne in mind that, when recruiting staff, the EU institutions should endeavour to secure the services of persons of the highest standard of ability, efficiency and integrity. It may well be difficult to ascertain that a candidate fulfils these criteria if the selection panel is presented with only one candidate. However, there can be cases where only one candidate would appear suitable. In such cases, principles of good administration would at least require that the reasons for inviting only one candidate be recorded in a note. However, no such note was drawn up in the present case.

66. When interviewing candidates, the selection panel needs to ascertain whether they fulfil the requirements laid down in the job description. During the inspection of the Commission's file, the Commission's representatives argued that it may have been the case that the job description did not correctly reflect the actual requirements. The Ombudsman considers these statements most surprising and unacceptable. It is only on the basis of a proper job description that a selection panel can carry out its duties. Moreover, candidates may have applied for a particular post on the basis of the information set out in the job description. It is therefore imperative, for the overall transparency of the Commission's procedures as well as in the interest of fairness towards the candidates, that a job description correctly reflect the actual requirements that a candidate needs to fulfil.

67. As regards the present case, it should be noted that the Commission itself acknowledged that the candidate's knowledge of French was tested both during the interview held on 11 October 2007 and during that held on 18 October 2007. It would not have made any sense to do so if the relevant requirement set out in the job description had not matched a real need for candidates to speak French.

68. The complainant argued that the candidate did not fulfil the requirements set out in the job description relating to work experience and linguistic competences. According to the job description, professional experience of at least three years was indicated as being desirable. This means that such experience was not a condition that needed to be fulfilled. As regards linguistic competences, the job description required the candidate to possess a good level of French as regards comprehension and reading as well as verbal and written expression. The Ombudsman notes that, in his curriculum vitae, the candidate described his knowledge of the French language as follows: "strong comprehension, basic conversational and written ability". It is clear that this was not sufficient to fulfil the requirement set out in the job description.

69. The Commission argued that (i) the selection panel did not need or was not even allowed to test the candidate's knowledge of French, given that this had already been tested by EPSO (see Article 5 of the GIP), and (ii) the selection panel found that the candidate did have good knowledge of French.

70. The Ombudsman is somewhat surprised by the Commission's argument (i), given that it is contradicted by the facts of the case. It is clear from the information available to the Ombudsman that the selection panel tested and assessed the candidate's knowledge of French. More importantly, it is clear that, contrary to the Commission's assertions, EPSO had not tested the candidate's knowledge of French, but merely his verbal and numerical skills and his specific competency profile. It thus appears that the selection panel had good reason to test the candidate's linguistic competences. Whether the complainant was actually prevented from testing the candidate's linguistic knowledge is a question of fact, on which the complainant and the Commission disagree. It is clear, however, that the complainant was not entirely prevented from testing the linguistic knowledge of the candidate.

71. As regards the Commission's argument (ii), it is clear from the information available that the selection panel examined the candidate's oral skills in French. Regard should be had to the fact, however, that the job description also required candidates to have good writing skills in French. Selection panels have a wide margin of discretion with regard to assessing candidates' skills and the methods they choose for doing so. The Ombudsman can find maladministration only in cases where there has been a manifest error of assessment. The Ombudsman considers that no such manifest error occurred in this case, as it is possible that the selection panel assumed that the candidate's writing skills in French were as good as his oral command of that language.

72. In view of the above, the Ombudsman considers that the complainant's argument, that the selection panel proposed a candidate who did not meet the job description requirements, is unfounded.

(iii) The panel’s alleged insufficient preparation for the interview, the arguments that the panel deliberated during the interview itself and that the complainant was discouraged from asking questions

73. It appears that the selection panel participants received the necessary documents sufficiently well in advance as to allow for appropriate preparation. Whilst there was no preparatory meeting, it is undisputed that the panel participants briefly discussed the requirements of the vacant post amongst themselves prior to interviewing the candidate. Given that the complainant and the other selection panel participants gave different versions of events, and given the time that has elapsed since the interview, it is not possible to establish whether or not the complainant had been discouraged from asking certain questions. Consequently, no maladministration can be established with regard to these issues.

74. As regards the complainant's other assertion that the panel had deliberated during the interview itself, it results from the note of 15 October 2007, that Mr D expressed the view, during the interview and in front of the candidate, that the candidate's knowledge of French was sufficiently good. However, the views expressed by individual members of a selection panel are confidential. It is therefore not in conformity with the confidential nature of the deliberations of a selection panel for such views to be expressed in the presence of the candidate to be assessed. The failure of the Commission's selection panel to abide by these rules thus constitutes an instance of maladministration.

(v) The allegedly unfair removal of the complainant from the selection panel and (vii) the argument that the selection panel held the interviews that had been cancelled without informing the complainant and in spite of his explicit requests to that effect

75. The complainant argued that, even if the selection panel had broad discretion, it was not entitled to exclude an 'uncomfortable' dissenting observer and leave him in a position of uncertainty about his role for weeks. However, it should be borne in mind that the complainant was designated as an observer by the CLP and thus it was this body with which the Commission was required to engage on the matter. Whilst the selection panel held the interviews that had been cancelled without informing the complainant, it cannot be ignored that the Commission had adequately informed the CLP and that it would have been up to the latter to inform the complainant or to raise objections, if it saw reason for doing so. Thus, no maladministration can be established in this respect.

(vi) The alleged failure to draw up a proper report and meeting minutes and the alleged incorrect and contradictory comments of the other panel participants

76. It is good administrative practice for a selection panel to draw up a report after holding interviews with candidates for a given post and the panel has assessed the candidates' performance. Such a document should indicate who the members of the selection panel were, be dated and be signed by all the participants in the selection panel. In the present case, the Ombudsman notes that the report is not dated and does not carry the signatures of all the participants in the selection panel. Even assuming that the complainant's signature was not needed, since his participation as an observer had been brought to an end, the Ombudsman fails to see why the report was not signed by the three members of the selection panel. If it was not possible for all the members to sign this document, the Commission should at least have documented the fact that those members agreed with the report, for instance by adding an e-mail to that effect to the file. However, this does not appear to have been done. As regards the contents of the note of 15 October 2007, it states that the complainant adopted an attitude of systematic disagreement when the selection panel participants proceeded to evaluating the candidate. However, the note also states that, out of the six competencies assessed for the purposes of evaluating the candidate, the complainant and the selection panel members agreed on one and reached consensus on two further competencies assessed. Against this background, the Ombudsman considers that the absence of a proper report constitutes a further instance of maladministration.

(ix) The alleged disclosure of correspondence in breach of the rules on confidentiality

77. The note of 15 October 2007 was sent to the selection panel members, to two functional e-mail addresses of the CLP, to a functional e-mail address of DG ADMIN, to three individuals having dealt with the recruitment procedure in question (from DG RELEX, DG ADMIN and the CLP, respectively) and to the complainant. The note of 15 October 2007, contained: the candidate's personal data (in addition to his full name), information on the questions and replies during the interview, the evaluations of the selection panel members and the complainant, as well the conclusion of the selection panel.

78. Given its content, in particular since it also contained the full name of the candidate, the note of 15 October 2007 should have been considered confidential. The Commission put forward that the addressees of the e-mail in question needed to be informed about the cancellation of the selection panel. Whilst this may well be true as regards the functional and personal e-mail addresses on the Commission's side, the same cannot be said in respect of one of the two functional e-mail addresses of CLP[3], which appears to have been its general mailbox and as such accessible to an unspecified number of persons who did not need to be informed about the cancellation of the interview[4]. In other words, it is not clear why the confidential information about the selection procedure (which was not marked 'confidential') had to be sent to a functional mailbox for observers as well as to the general functional mailbox of the CLP. Against this background, the Ombudsman concludes that the Commission failed to observe the rules of confidentiality when sending the note of 15 October 2007.

Conclusion

79. It constitutes good administrative practice to carry out recruitment procedures properly. In light of her findings in paragraphs 74, 76, 77 and 78 above, the Ombudsman concludes that the Commission failed to do so in the present case. This amounts to an instance of maladministration.

B. Alleged failure to handle properly the complainant's request for assistance and the corresponding part of the claim

Arguments presented to the Ombudsman

80. The complainant alleged that the Commission failed properly to handle his request for assistance under Article 24 of the Staff Regulations. He argued that the Commission based its decision on his request exclusively on the note of 15 October 2007, and failed to consider his version of the events.

81. The Commission argued that, in his request for assistance, the complainant merely repeated the arguments he had put forward in his first staff complaint. The latter had been rejected by the Commission by means of a reasoned decision. The Commission stressed that civil servants of the EU may only submit one complaint against an act adversely affecting them[5]. Consequently, the Commission had limited itself to addressing the only new argument contained in the complainant's request for assistance. In its opinion, the Commission reiterated the arguments set out in its reply on the complainant's request for assistance and concluded that it had examined the complainant's allegations carefully.

82. The complainant took the view that the Commission appeared to criticise him for having lodged several complaints. Indeed, he had resorted to several means of redress. However, it was not clear to him what was wrong in doing so. Furthermore, he could not see how the reasoning in the judgment referred to by the Commission could be invoked against such an approach.

The Ombudsman's assessment

83. The Ombudsman notes that, save for the paragraph containing the request for assistance, the complainant's request for assistance included the same arguments as those advanced in his complaint pursuant to Article 90(2) of the Staff Regulations. Whilst there is nothing wrong, in principle, with relying on the same arguments when resorting to a different means of redress, it is useful to note that, in the complainant's request for assistance, the arguments he put forward served the purpose of calling into question the decision to remove him from the selection panel. However, the Commission had already informed the complainant of its position on this issue. Therefore, the Ombudsman considers that the Commission's position on that part of the request for assistance was reasonable.

84. As for the remaining part of the request for assistance, the Commission took the view that (i) the complainant did not sufficiently specify which parts of the note of 15 October 2007 he considered defamatory, (ii) certain statements made by the other selection panel participants reflected their points of view, which might not have been shared by the complainant, and (iii) in documents setting out his version of the events, he had put forward his reasons as to why he could not concur with other panel members, and thus the view that his disagreement had a blocking effect was a finding of fact.

85. It is true that in some respects, the note of 15 October 2007 was critical of the complainant. Therefore, the Ombudsman understands why the complainant objected to these statements (see paragraph 7 above). However, it needs to be stressed that a critical comment is not necessarily defamatory. The Ombudsman considers that although some of the statements made in the note of 15 October 2007 were very critical of the complainant, they are not such to amount to defamation, as they do not touch upon the complainant's honour or good name. In this respect, the Commission rightly pointed out that they appear to express the views of other panel participants, which might not have been shared by the complainant. In fact, the complainant did make it clear that he disagreed with the relevant statements, and set out the reasons for his position. Finally, it also emerges from the Commission's decision on the request for assistance that it did take into account the complainant's version of the events, even though it did not consider that it invalidated the views expressed in the note of 15 October 2007. Therefore, it cannot be concluded that the Commission had based itself exclusively on the views put forward in the note of 15 October 2007.

86. Consequently, no maladministration can be found in that respect.

C. Alleged failure to handle properly the administrative redress procedure under Article 22a of the Staff Regulations and the corresponding part of the claim

Arguments presented to the Ombudsman

87. The complainant argued that the Commission (i) based its decision exclusively on the submissions put forward by DG RELEX, failed to address the arguments submitted by him and repeated its previous arguments; and (ii) in spite of manifest irregularities, failed to intervene with regard to DG RELEX and DG ADMIN.

88. In its opinion, the Commission referred to the wording of Article 22a of the Staff Regulations[6] and pointed out that the complainant never specified which conduct could constitute "possible illegal activity, including fraud or corruption, detrimental to the interests of the Communities, or ... conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Communities". Once OLAF concluded that it was not competent to investigate the case put forward by the complainant and in view of the complainant's request for assistance, the Commission mandated IDOC to carry out an administrative investigation. IDOC had examined all the documents and arguments submitted by the complainant. Moreover, it had taken statements from the complainant, two members of the CLP, the official of DG ADMIN in charge of selection procedures as well as Mrs M.

89. IDOC concluded that the recruitment procedure in question was carried out correctly. The decision to interrupt the interview and to exclude the complainant had been taken in the interest of the service. As regards the decision to propose that the candidate be hired, the Commission pointed out that all the participants of the selection panel, save for the complainant, agreed that the candidate met the requirements for the profile in question.

90. During the inspection, the Ombudsman's representatives noted that in the framework of the IDOC investigation, the IDOC investigators took statements from a number of individuals, including the complainant and the chairwoman of the panel, Mrs M. However, IDOC did not take statements from the other two members of the selection panel of 11 October 2007. The Commission's representatives explained that, by the time the IDOC inquiry took place, Mr D had been posted to a Commission delegation outside the EU. Except for the complainant, all the other selection panel participants were in agreement as regards the linguistic knowledge of the candidate. Moreover, had IDOC taken the testimony of Mr F and Mr D, they would simply have confirmed the views expressed in the report concerning the selection procedure of 11 October 2007.

91. The complainant considered the Commission's statement that he had never explicitly mentioned which conduct could amount to illegal activity to be disingenuous and absurd.

92. In his view, considering that the investigation took many months to be completed, the Commission could have waited until the relevant officials were back in Brussels in order to have their statements recorded, instead of speculating about what they would have said.

The Ombudsman's assessment

93. The Ombudsman's representatives inspected the Commission's files concerning the recruitment in question and the subsequent administrative procedures. In particular, they inspected IDOC's confidential investigation report on the redress procedure pursuant to Article 22a of the Staff Regulations. It is clear from that report that the Commission did take into account the complainant's version of the events and his arguments.

94. Whilst it is true that the letter of 1 July 2009 did not explicitly address all the arguments raised by the complainant, it is equally true, as highlighted by the Commission in its reply of 15 October 2009, that the letter of 1 July 2009 was part of a context that was well-known to the complainant, dealing with issues that the Commission had already addressed in the framework of other previous administrative procedures initiated by the complainant. Thus, the Commission's position with regard to supporting argument (i) appears reasonable.

95. As for supporting argument (ii), the Ombudsman cannot agree that the Commission's substantive position on the redress procedure pursuant to Article 22a of the Staff Regulations was correct. In this context, it should be borne in mind that it constitutes good administrative practice to carry out administrative inquiries properly.

96. As noted in paragraphs 66, 70, 74, 76, 77 and 78 above, there were a number of deficiencies in the recruitment procedure. These deficiencies were, regrettably, not properly identified, addressed or dealt with in the framework of IDOC's inquiry. Furthermore, with regard to the failure to hear the other two selection panel members (Mr R and Mr D), the Ombudsman notes that IDOC merely assumed that they would have said the same thing as Mrs M. However, there was nothing in the Commission's file to suggest that it had even attempted to contact them (for example by e-mail) so as to confirm this understanding. What is more, whilst Mr D might have been posted at a delegation outside the EU, it appears that this was not the case for Mr R. It is therefore all the more puzzling that IDOC limited itself to hearing only Mrs M.

97. As a result, the Ombudsman considers that the Commission failed to carry out the administrative inquiry properly. This constitutes an instance of maladministration.

D. Conclusions

On the basis of the inquiry, the Ombudsman closes complaint 415/2011/(RT)VL and own-initiative inquiry OI/6/2011/VL with the following two critical remarks and conclusions:

It constitutes good administrative practice to carry out recruitment procedures properly. In light of her findings in paragraphs 74, 76, 77 and 78 above, the Ombudsman concludes that the Commission failed to do so in the present case. The Ombudsman therefore finds an instance of maladministration with regard to the first allegation.

It constitutes good administrative practice to carry out administrative inquiries properly. There were several deficiencies in the recruitment procedure that were neither identified nor addressed in the course of IDOC's inquiry. The Ombudsman therefore finds an instance of maladministration with regard to the third allegation.

The Ombudsman finds no maladministration with regard to the remainder of the complaint.

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

 

Emily O'Reilly

Done in Strasbourg on 2 May 2014

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[1] Article 5(1)(g) of the GIP provides that the selection procedure for type (a) contract staff shall comprise "validation, in the database, of the candidatures who have successfully completed the test".

[2] Article 5(1)(d) of the GIP provides that the selection procedure for type (a) contract staff shall comprise "testing of candidates matching the profiles and qualifications" and that "the tests shall focus in particular on the candidates’ general aptitudes, in particular their verbal and numerical reasoning capacity, and on their linguistic ability; candidates who have passed the tests will be listed in the database".

[3] One functional e-mail address corresponded to the general mailbox of the CLP, whereas the other functional e-mail address appears to have been meant for the CLP's observers.

[4] The Ombudsman notes that the complainant explicitly drew the Commission's attention to this issue in an e-mail of 24 October 2007 and in the note setting out his version of the events.

[5] Case T-66/05 Sack v Commission [2007] ECR-SC I-A-2-229 and II-A-2-1487.

[6] "1. Any official who, in the course of or in connection with the performance of his duties, becomes aware of facts which gives rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Communities, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Communities shall without delay inform either his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office (OLAF) direct.

[...]".