The complaint to the institution

1. The complainant is a staff member of an EU institution who took part in a selection procedure aimed at filling permanently the position of Deputy Head of Department. The complainant took part in all the stages of the selection procedure. Together with two other candidates he was put on the list of suitable candidates and, among them, he was ranked third. In December 2017, the appointing authority decided to appoint Mr X, who had ranked first, as Deputy Head of Department. In February 2018, the complainant initiated a special appeal against this decision.

2. In his special appeal, the complainant alleged that the composition of the selection committee was vitiated by the presence of Mr Y, whose line manager responsible for the assessment of his performance at the time was Mr X. In particular, the complainant claimed that the subordinate relationship between Mr Y and Mr X raised conflict of interest issues and impaired the impartiality of the recruitment process.  

3. The complainant also argued that, as Mr X had been appointed as acting Deputy Head of Department, he had had an unfair advantage in the selection procedure. In particular, some of the written questions asked to candidates concerned an issue on which Mr X had directly worked as acting Deputy Head of Department.

4. In the complainant’s view, the selection procedure was not transparent either as he had not received (i) his scoring for each of the requirements laid down in the vacancy, (ii) the results of the written exercise, or (iii) information concerning his ranking on the list of suitable candidates.

The institution’s decision

5. In May 2018, the institution rejected the complainant’s complaint as inadmissible on the grounds that he did not have an interest to act. It argued that, as the selection committee had put the complainant on the list of suitable candidates, the complainant had failed to demonstrate how the alleged conflict of interest had adversely affected him. The complainant had also failed to demonstrate how he would benefit from the annulment of the appointment decision, as this would entail the annulment of the list of suitable candidates and of the shortlist from which successful candidates were to be recruited.

6. Nevertheless, the institution addressed the substantial arguments raised by the complainant. First, it rejected the alleged existence of a conflict of interest saying that a careful review of the proceedings of the selection committee showed that neither Mr Y nor the committee had breached their duty of impartiality. The institution noted that Mr Y did not have a personal relationship with Mr X, but only a professional one, and argued that the existence of a professional relation between a member of the selection committee and a candidate does not imply that the member of the committee has a personal interest in acting to the advantage or disadvantage of one of the candidates. The institution also informed the complainant that Mr X had not provided any input in the appraisal of Mr Y for the year of 2017, Mr Y being part of a different team, managed directly by the Head of Department.

7. In that regard, the institution added that, although the complainant was informed at an early stage of the procedure of the composition of the selection committee, he did not raise any concerns about the presence of Mr Y.

8. The institution stated that even if the performance of duties on a temporary basis (acting Deputy Head of Department) could place a candidate at an advantage when preparing for a subsequent competition designed to fill the same position on a permanent basis, this cannot prevent an institution from filling the post temporarily with the person that it considers most suitable for it. The institution also reviewed the questions of the written exercise and concluded that Mr X had not benefited from any previous knowledge compared with the other candidates. It also added that the remote written test and its evaluation had been carried out anonymously.

9. Finally, the institution rejected the complainant’s claim that the procedure lacked transparency, stating that the principle of transparency does not require the institution to provide information about a candidate’s score for each of the requirements of a vacancy notice. It then informed the complainant of his final score and of his ranking on the list of suitable candidates. 

10. The complainant was not satisfied with the institution’s decision and turned to the Ombudsman arguing that the subordinate relationship between Mr X and Mr Y did exist. He claimed that the institution’s decision did not reflect the fact that Mr X was one of the two line managers assessing Mr Y’s performance. He claimed that the appraisal of Mr Y’s performance had been carried out at the same time as the selection procedure, and that while Mr Y was assessing Mr X in the context of the selection procedure, Mr X was assessing Mr Y’s performance for the period September 2015 - August 2016.

The European Ombudsman's finding

11. The Ombudsman notes that the institution has reviewed the challenged selection procedure and has thoroughly addressed the arguments raised by the complainant in his special appeal. Regarding the possible mutual subordinate relationship between Mr Y and Mr X and the presumed conflict of interest, the Ombudsman notes that, even if such a relationship did exist, as the institution pointed out, the written test and its evaluation were carried out anonymously. In such a case it is difficult to see how such an alleged relation of subordination could have been to the advantage of Mr X. The Ombudsman also notes that the complainant at no stage of the selection procedure raised the issue of the alleged lack of impartiality or conflict of interest of Mr Y. Thus the Ombudsman finds the institution’s decision reasonable.

12. That said, the Ombudsman regrets that the institution did not provide the complainant with information regarding the breakdown of his marks vis-à-vis the requirements laid down in the vacancy note. It notes that, as consistently held in previous decisions of the Ombudsman on the same issue, selection committees should, acting in accordance with the principle of good administration, provide individual explanations to those candidates who require them^[1]. Thus, the Ombudsman trusts the institution to communicate to the complainant the information that he requested.

13. Based on the information provided by the complainant, the Ombudsman finds no maladministration in this case.^[2]

 

Lambros Papadias

Head of Inquiries - Unit 3

Strasbourg, 17/09/2019

 

[1] See Decision of the European Ombudsman closing his own-initiative inquiry OI/5/2005/PB concerning the European Personnel Selection Office, paragraph 18: https://www.ombudsman.europa.eu/en/decision/en/3706.

[2] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions.