Strasbourg, 24 October 2007

Dear Mr L.,

On 29 December 2005, you submitted a complaint to the European Ombudsman against the European Commission concerning its failure to recruit you as a contractual agent.

On 23 January 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 12 May 2006. I forwarded it to you with an invitation to make observations, which you sent on 30 June 2006.

On 12 December 2006, I sent a letter of further inquiries to the Commission and informed you in a letter of the same day. On 16 February 2007, the Commission sent its reply to my request for further information, which I forwarded to you with an invitation to make observations. You sent your observations on 16 March 2007.

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

THE COMPLAINT

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

In July 2005, the complainant, using the website of the European Personnel Selection Office ("EPSO"), applied for a "Function Group IV" contractual agent post. On 21 October 2005, he was invited for an interview at the European Commission's Representation in Tallinn, Estonia ("the Representation"), which was held on 27 October 2005.

On 2 November 2005, the Head of Representation informed the complainant by telephone that he had successfully passed the interview and that, as the most suitable candidate, he would have to take the necessary steps in order to take up employment as from mid-December 2005. The complainant agreed to begin as of 15 December 2005. On 8 November 2005, he received an invitation to undergo the necessary medical examinations in Brussels, which he did on 15 November 2005. Since the complainant had discussed with the officials of the Representation that he would take up employment as of 15 December 2005, he gave notice to his employer on 24 November 2005.

However, on 25 November 2005, the Head of Representation informed him by telephone that the Commission's Directorate-General for Personnel and Administration ("DG ADMIN") had decided that it could not employ him, due to the insufficient professional experience he had acquired after graduating from university. By letter of 28 November 2005, the complainant requested that the Commission present its arguments and the legal basis for its decision not to employ him. Subsequently, on several occasions, the complainant contacted, by telephone, the Head of Representation, who stated that the officials and lawyers of the Commission's Directorate-General for Press and Communication ("DG COMM") expressed their sympathy with the arguments he had presented in his letter of 28 November 2005.

On 19 December 2005, the Head of Unit in charge of General Horizontal Issues and Policy and Recruitment of External Staff of DG ADMIN confirmed to the complainant that he could not be employed because of his lack of appropriate professional experience.

On 29 December 2005, the complainant submitted the present complaint to the European Ombudsman, in which he alleged that the Commission had violated his rights by its decision not to employ him as a "Function Group IV" contractual agent.

In his complaint, the complainant pointed out in particular that:

1. the Conditions of employment of other servants of the European Communities(1) ("the CEOS") did not provide a legal definition for "appropriate professional experience";
2. in relation to the Commission's statement made in its letter of 19 December 2005 that "'appropriate' professional experience (...) is defined as (...)", the Commission's letter did not clarify where this definition was to be found;
3. the Commission wrongly failed to consider his full-time work as a consultant to the Constitutional Committee in the Estonian Parliament as constituting "professional experience";
4. since he had a post in the Estonian Parliament that required a university degree, he indeed had graduate-level work experience; and that
5. the Commission's argument that the "appropriate professional experience" begins with the award of a university degree was not supported by the provisions of the CEOS.

The complainant requested that the Ombudsman (a) review the question whether the Commission had interpreted the rules relevant to his case in an unjustifiably narrow manner; and (b) make an assessment on how to evaluate the damage caused to him by the Commission, as a result of the fact that it notified him in an untimely manner of his non-eligibility for the post at issue.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made, in summary, the following comments:

The Commission referred to the background and events listed by the complainant in his complaint to the Ombudsman. It stated that DG COMM had informed the complainant that a contract could only be offered once the administrative process, which involved checking candidates' qualifications and work experience in order to determine whether they have access to a particular Function Group, had been completed. Given the fact that the complainant had been made aware that the Commission's offer was subject to the checking of his personal details, he should not have given notice to his employer before the administrative process had been completed and before he had been offered a formal contract. The Commission noted that the following warning was published on EPSO's website: "If, at any stage in the procedure it is established that the information in your electronic registration form is incorrect, or that you do not meet all the conditions for admission to the selection procedure, you will be disqualified." The complainant therefore had no reason to give notice to his employer.

As regards the telephone conversations between the complainant and the Head of Representation, the Commission emphasised that the Head of Representation probably had expressed his personal sympathy with the arguments the complainant had presented in his letter of 28 November 2005. However, the Head of Representation had certainly informed the complainant that he was not empowered to take a decision in this matter. He could not have informed the complainant about the sympathy expressed by DG COMM's lawyers with the complainant's situation, since this had not been the case.

The Commission stated that the CEOS do not provide a definition of "appropriate" professional experience, but that the Commission considered that, in order to fulfil the access conditions for "Function Group IV", work experience must have been gained after a university degree of at least three years in duration has been awarded. The Commission's intention, when determining this rule, had been to ensure that university graduates already possess graduate-level work experience before taking up the positions sought-after.

The complainant's statement, that the Commission had not considered his experience at the Estonian Parliament as "professional experience", was incorrect. The Commission had recognised this experience as "professional experience", but not as "graduate-level experience", because it had been obtained before the complainant's university degree was awarded. At that time, the complainant was not yet a graduate and his experience at the Estonian Parliament could not therefore be considered as graduate-level experience. The Commission added that the criteria applied by the Estonian Parliament when employing staff, that is to say, that the complainant held a post that required a university degree before he had actually been awarded a university degree, had no relevance as regards the Commission's rules.

The Commission recalled that, in similar cases, the Court of First Instance upheld the Commission's decision that experience had to be obtained at an appropriate level. In Case T-2/90 Ferreira de Freitas v Commission(2), the Court stated, inter alia, that the Commission had the right to determine that experience could only be taken into account if it were obtained after a diploma had been awarded.

The Commission concluded its opinion by stating that its interpretation of the relevant Community legislation had been fair and correct. The Commission regretted the fact that the complainant had only been informed at a relatively late stage in the recruitment process that he had not met the requirements. However, a warning had been given on EPSO's website, and the Representation had also informed the complainant that there were administrative procedures that had to be followed. The complainant, therefore, should not have given notice to his employer before receiving a formal contract offer from the Commission.

The Commission added that it was not in the interests of either the candidate or the Commission that such problems arise at a relatively late stage in the recruitment procedure. The Commission pointed out that the Director-General of DG ADMIN had therefore sent a note to DG COMM to recommend that particular attention be paid to candidates' professional experience. This measure was intended to help avoid the re-occurrence of this type of unfortunate event in the future.

The complainant's observations

In his observations, the complainant maintained his complaint and made, in summary, the following remarks:

The complainant first referred to the Commission's statement that it had the right to decide who had "appropriate professional experience" even if the CEOS do not specify that professional experience can only be considered appropriate if obtained after a diploma has been awarded. In this regard, he observed that the general rule of law is that the arbitrary interpretation of the rules cannot be justified and must be declared illegal, or at least the law cannot be interpreted against the person who is subject to that law. The complainant submitted that the Commission's decision not to employ him was therefore an incorrect, illegal, and arbitrary interpretation of the rules.

The complainant stated that Case T-2/90 Ferreira de Freitas v Commission, mentioned in the Commission's opinion, had no relevance in the present case, since it dealt with the issue of how to define the date of award of a university degree and the possible ways to calculate the seniority of a candidate who had worked only for the Commission.

The complainant acknowledged that candidates had indeed been warned not to present incorrect information in their applications and that they could be disqualified if they did not meet all the conditions for admission to the selection procedure. The complainant also admitted that he had never been told directly by the Commission to give notice to his former employer. However, he had been strongly advised to begin his work at the Commission as soon as possible, and he had therefore agreed to start on 15 December 2005. The complainant argued that, since the law in most of the EU Member States requires that notice be given at least one month before the expected date of departure, the Commission, as a professional employer, must have been aware of this requirement. The complainant had been acting in good faith when he gave notice to his former employer in order to be able to begin his work at the Commission as soon as possible. The complainant added that the fact that he gave notice to his former employer had clearly reduced his chances of any future career in the Estonian Parliament.

Further inquiry
The Ombudsman's request for further information from the Commission

On the basis of the information provided in the Commission's opinion of 12 May 2006, as well as in the complainant's observations of 28 June 2006, it appeared necessary to ask the Commission for further clarifications. In his letter of 12 December 2006, the Ombudsman therefore asked the Commission to explain:

1. why the Call for expression of interest in the present case merely referred to "appropriate professional experience" and did not contain any clarification as regards the required professional experience, such as for instance "post-graduate" professional experience or "acquired in the field covered by the diploma"?;
2. the specific basis for its view that, notwithstanding the absence of any information to this effect in the Call for expression of interest, it was entitled to require that the professional experience had to be obtained after the award of the relevant diploma?;
3. why the complainant was invited on 8 November 2005 to undergo medical examinations, when the administrative process of checking his qualifications and professional experience had not yet been completed?

The Commission's reply

In its reply of 6 February 2007, the Commission made, in summary, the following comments:

As regards question (i), the Commission explained that the pertinent Call for expression of interest was launched in June 2005 by EPSO, on behalf of the Institutions of the European Communities, in order to create a database of candidates to be recruited as contract staff to carry out various tasks in the Institutions. The Call for expression of interest therefore had to contain information that was applicable to all Institutions, regardless of which other further requirements there may be in each Institution. Each Institution adopts its own general implementing provisions in order to apply the articles of the CEOS. The Commission's General Implementing Provisions on the Procedures Governing the Engagement and the Use of Contract Staff at the Commission(3) provide that the year of work experience required for access to Function Group IV must be at an appropriate level, and should therefore be obtained after graduation from university. As other Institutions apply different implementing provisions or none at all, EPSO could only publish the conditions that apply to all Institutions.

The Commission added that, in order to avoid confusion, it would ask EPSO (i) to draw the candidates' attention to the fact that some Institutions may have stricter requirements in terms of appropriate professional experience than those set out by EPSO and (ii) to include a link to the Commission's website to ensure that candidates interested in Contract Agent posts would be aware of the Commission's specific requirements and, in particular, of the fact that appropriate professional experience must be acquired after the required degree has been awarded.

As regards question (ii), the Commission pointed out that Article 2(d) of its General Implementing Provisions, as referred to above, provides that "[e]ngagement as a member of the contract staff shall require at least: (...) in function group IV: completed university studies of at least three years attested by a diploma and appropriate professional experience of at least one year." For this reason, the Commission can only take into account work experience obtained after the university diploma has been awarded. The Commission considered that professional experience could only be considered as appropriate if obtained after the university qualification has been awarded.

As regards question (iii), the Commission explained that the recruitment procedure could last up to two months after the person has been selected, and that a significant part of this time is taken up by the medical examinations. The results of the medical examinations generally arrive several weeks after the examination has taken place. For this reason, the Commission schedules medical appointments for candidates as early as possible in the recruitment process. At the same time, candidates are also asked to provide a full dossier of their certificates, documents and references to DG ADMIN. The Commission added that the aim of organising medical visits in parallel with the other administrative procedures is to speed up the recruitment procedure.

The complainant's reply

In his additional observations, the complainant maintained his complaint and stated that he did not have any further comments on the Commission's opinion on his complaint.

THE DECISION

1 The alleged violation of the complainant's rights by the Commission

1.1 In July 2005, the complainant, using the website of the European Personnel Selection Office ("EPSO") sent his application for a "Function Group IV" contractual agent post at the European Commission's Delegation in Tallinn, Estonia ("the Representation"). On 21 October 2005, he was invited for an interview at the Representation, which was held on 27 October 2005. On 2 November 2005, the Head of Representation informed him by telephone that he had successfully passed the interview, and he was therefore invited to undergo the necessary medical examinations in Brussels, which he did on 15 November 2005. On 24 November 2005, the complainant gave notice to his former employer. However, on 25 November 2005, the Head of Representation informed him that the Commission's Directorate-General for Personnel and Administration ("DG ADMIN") had decided that it could not employ him. On 28 November 2005, the complainant requested that the Commission present its arguments and the legal basis for its decision. On 19 December 2005, the Head of Unit in charge of General Horizontal Issues and Policy and Recruitment of External Staff of DG ADMIN informed the complainant that the Commission could not employ him because of his lack of appropriate professional experience. On 29 December 2005, the complainant submitted the present complaint to the European Ombudsman, and alleged that the Commission had violated his rights by its decision not to employ him as a "Function Group IV" contractual agent. In his complaint, the complainant pointed out in particular that:

1. the Conditions of employment of other servants of the European Communities(4) ("the CEOS") did not provide a legal definition for "appropriate professional experience";
2. in reference to the Commission's statement, made in its letter of 19 December 2005, that "'appropriate' professional experience (...) is defined as (...)", the Commission's letter did not clarify where it was "defined";
3. the Commission wrongly failed to consider his full-time work as a consultant to the Constitutional Committee in the Estonian Parliament as constituting "professional experience";
4. since he had a post in the Estonian Parliament that required a university degree, he indeed had graduate-level work experience; and
5. the Commission's argument, that the "appropriate professional experience" begins with the award of a university degree, was not supported by the provisions of the CEOS.

1.2 In its opinion, the Commission stated that the Commission's Directorate-General for Press and Communication ("DG COMM") had informed the complainant that a contract could only be offered once the administrative process, which involved checking the candidates' qualifications and work experience, had been completed. Given the fact that the complainant had been made aware that the Commission's offer was subject to the checking of his personal details, he should not have given notice to his former employer before the completion of the administrative process and before he had been offered a formal contract. The Commission pointed out that an explicit warning was published on EPSO's website that candidates would be disqualified if they did not meet all the conditions for admission. The complainant, therefore, should not have given notice before receiving a formal contract offer.

The Commission argued that, despite the fact that the CEOS do not provide a definition of "appropriate" professional experience, it considered that, in order to fulfil the access conditions for "Function Group IV", work experience must have been gained after a university degree of at least three years in duration has been awarded. This is to ensure that university graduates already possess graduate-level work experience before taking up employment in "Function Group IV". Furthermore, the Commission did indeed recognise the complainant's work experience at the Estonian Parliament as "professional experience", but not as "graduate-level experience", because it had been obtained before his university degree was awarded. Furthermore, the fact that the complainant held a post at the Estonian Parliament that required a university degree before he was awarded a university degree, had no relevance as regards the Commission's rules.

The Commission recalled that, in Case T-2/90 Ferreira de Freitas v Commission(5), the Court upheld the Commission's decision that experience had to be obtained at an appropriate level. The Commission also stated, inter alia, that it had the right to determine that experience can only be taken into account if it is obtained after a diploma had been awarded.

The Commission concluded by stating that its interpretation of the relevant Community legislation had been fair and correct. The Commission regretted the fact that the complainant had only been informed at a relatively late stage in the recruitment process that he had not met the requirements. The Commission pointed out that, in order to avoid the re-occurrence of this type of unfortunate event in the future, the Director-General of DG ADMIN had recommended to DG COMM that particular attention be paid to the candidates' professional experience.

1.3 In his observations, the complainant observed that the general rule of law is that arbitrary interpretation of the rules cannot be justified and must be declared illegal, or at least the law cannot be interpreted against the person who is subject to that law. Since the CEOS did not specify that professional experience could only be considered appropriate if it had been acquired after a diploma was awarded, the Commission's decision not to employ him was an incorrect, illegal and arbitrary interpretation of the rules. The complainant further observed that the case-law cited in the Commission's opinion had no relevance in the present case.

The complainant acknowledged that candidates had been advised not to present incorrect information in their applications and that they could be disqualified if they did not meet all the conditions for admission to the selection procedure. The complainant stated that he had never been asked directly by the Commission to give notice to his former employer. However, he submitted that he had been strongly advised to begin his work at the Commission as soon as possible, and he had therefore agreed to start on 15 December 2005.

The complainant argued that the Commission should have been aware of the fact that, in most of the EU Member States, the law requires that notice be given to the employer at least one month before the desired time of departure. The complainant stressed that he had been acting in good faith when he had given notice to his employer, in order to be able to begin his work at the Commission as soon as possible. The complainant concluded by saying that the fact that he gave notice had clearly reduced his chances of any future career in the Estonian Parliament.

1.4 The Ombudsman notes that, point 3 (Eligibility criteria and general conditions) of Section A (Conditions and eligibility) of the Call for expression of interest - EU 25 (the Call)(6) provided that:

"to apply for a contract agent position candidates must meet the following eligibility criteria (...) For function group IV: a level of education which corresponds to completed university studies of at least three years' duration attested by a diploma and appropriate professional experience of at least one year" (emphasis added).

The Call did not specify the requirement for "appropriate professional experience" (of at least one year). The same is true with the CEOS (Article 82) and of the Commission's General Implementing Provisions on the Procedures Governing the Engagement and the Use of Contract Staff at the Commission(7). Under these circumstances, the Commission enjoyed a wide margin of discretion in assessing whether candidates had the required "appropriate" professional experience of at least one year. The Ombudsman finds that the Commission did not exceed the limits of its above discretion by considering that a particular professional experience was only appropriate, within the meaning of point 3 of Section A of the Call, if it had been obtained after the acquisition of the university diploma also required by the Call. Consequently, the Commission did not exceed the limits of its above discretion when it decided not to characterise as "appropriate" the professional experience the complainant had acquired at the Estonian Parliament before he had obtained his university degree. The fact that this professional experience might have been acquired in a post requiring a university degree, as the complainant has argued, does not have a bearing on the Commission's examination of the foregoing matter. Hence, the Ombudsman finds that the Commission's foregoing decision regarding the complainant's professional experience did not amount to an instance of maladministration.

1.5 As regards the complainant's request for an assessment of how to evaluate the damage caused to him by the Commission, as a result of the fact that it notified him in an untimely manner of his non-eligibility for the post at issue, the Ombudsman notes the following. Principles of good administration require that the information the Community Administration gives to citizens, either upon request or on its own initiative, be accurate and sufficiently clear and that its behaviour be consistent. This is particularly important in contexts like the present one, where the Administration's behaviour and the information it gives concern the conclusion of a work contract between the Community and a participant in a recruitment procedure. Indeed, in these cases, the Administration's behaviour and the content of such information are likely to constitute an important and even crucial factor for the citizen to consider when deciding whether he or she will change his existing working situation and possibly his living arrangements and lifestyle(8). The inconsistency of the Administration's behaviour or t he provision of misleading information to a candidate may, under certain circumstances, be considered as a fault that can give rise to Community liability, provided that other conditions for recognising the non-contractual liability of the Communities are also met(9).

According to the established case-law of the Community Courts, the non-contractual liability of the Community for acts of its institutions or bodies depends on the fulfilment of a set of conditions, namely, (i) the unlawfulness of the alleged conduct of the institution concerned; (ii) the fact of damage; and (iii) the existence of a causal link between that conduct and the damage complained of(10). If one of these conditions is not met, the claim for damages is dismissed in its entirety without the need to examine the other conditions(11). As regards, the above-mentioned conditions, it must also be noted that the applicant has to state the factual circumstances of the alleged damage(12), and bear the burden of establishing the fact of the damage and the extent of that damage(13). In particular, where the applicant asks for compensation for emotional distress, or some other kind of non-material damage, he or she has to establish that the allegedly unlawful conduct of the institution concerned is, in view of its seriousness, likely to cause an actual and certain harm in this regard(14).

In the case at hand, the complainant has referred to damage caused to him by the Commission's behaviour only in vague terms, without submitting any kind of specific arguments and supporting evidence about the nature, fact and extent of his alleged damage. Hence, the Ombudsman is unable to make, in a meaningful manner, the assessment requested by the complainant.

1.6 Finally, the Ombudsman welcomes the Commission's statement that the Director-General of DG ADMIN has sent a note to DG COMM recommending that particular attention be paid to candidates' professional experience, in order to avoid the re-occurrence of similar problems at a relatively late stage in the recruitment procedure. Relatedly, the Ombudsman will make a further remark below.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it appears that the Commission's decision to consider that the complainant did not meet the eligibility requirement for "appropriate" professional experience set out in the pertinent Call did not amount to an instance of maladministration.

The Ombudsman therefore closes the case.

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

FURTHER REMARK

Principles of good administration require that the information the Community Administration gives to citizens, either upon request or on its own initiative, be accurate and sufficiently clear and that its behaviour be consistent. This is particularly important in situations like the present one, where the Administration's behaviour and the information it gives concern the conclusion of a work contract between the Community and a participant in a recruitment procedure. Indeed, in such cases, the Administration's behaviour and the content of such information are likely to constitute an important and even crucial factor for the citizen to consider when deciding whether he or she will change his or her existing working situation and possibly his or her living arrangements and lifestyle. The inconsistency of the Administration's behaviour or t he provision of misleading information to a candidate may, under certain circumstances, be considered as a fault that can give rise to Community liability, provided that other conditions for recognising the non-contractual liability of the Communities are also met.

According to the Call for expression of interest here concerned, (i) the eligibility requirements set out in it would be examined (on the basis of the application alone and, without having recourse to relevant supporting documents) at the first stage of the selection procedure; while (ii) an invitation for interview formed part of the final stage of this procedure, (in the context of which, the candidates interviewed would be asked to provide all relevant supporting documents). Such arrangements are consonant with essential principles of good administration of a recruitment procedure. These principles of good administration require that the eligibility requirements be properly examined before the invitations for interview, even on the basis of the information provided by the candidates in their applications and without having recourse to relevant supporting documents. The same principles require that the competent organ(s) of the institution concerned must make a definitive decision about the selection of a candidate, including the fulfilment or non-fulfilment of the eligibility conditions, before the institution indicates, even informally, to the candidate its intention to recruit him or her, starts discussing with him or her the possible date of recruitment, and invites him or her for a medical examination.

The Commission is invited to take properly the above into account in the context of its recruitment procedures.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Available on the Commission's website ( http://ec.europa.eu/dgs/personnel_administration/statut/tocen100.pdf).

(2) Case T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103.

(3) Commission Decision C(2004)1313 of 7 April 2004 entered into force on 1 May 2004 (see Administrative Notice N°49-2004/01.06.2004) as amended by Commission decision C(2004) 2862 of 27 July 2004.

(4) Available on the Commission's website ( http://ec.europa.eu/dgs/personnel_administration/statut/tocen100.pdf).

(5) Case T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103.

(6) Call for expression of interest to constitute a database of candidates to be recruited as contract agents carrying out various tasks within the European Institutions. The Call is available on EPSO's website (http://europa.eu/epso/contract-agents/call-eu25_en.pdf).

(7) Commission Decision C(2004)1313 of 7 April 2004 as amended by Commission decision C(2004) 2862 of 27 July 2004.

(8) Cf. Ombudsman's decision on complaint 272/2005/DK, point 1.4.

(9) Cf. Ombudsman's decision on complaint 3321/2004/DK, point 2.6.

(10) See Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20.

(11) Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37.

(12) See Case T-195/00 Travelex Global and Financial Services and Interpayment Services v Commission, [2003] ECR II-1677 paragraph 26-27.

(13) See Case T-285/03 Agraz and others v Commission [2005] ECR II-01063, paragraph 70-71.

(14) See Case T-230/95 BAI v Commission [1999] ECR II-00123, paragraph 38-39.