Dear Mr B.,
On 2 January 1997, you lodged a complaint with the European Ombudsman concerning the decision of the Selection Board of open competition Council/C/374, to reject your application without informing you of any possible means to contest it. The Selection Board justified its decision on the grounds that you had not furnished evidence of your linguistic knowledge of a second Community language.
I forwarded the complaint to the Secretary-General of the Council of the European Union on 27 February 1997. The Council sent its comments on 30 May 1997. Having translated these comments into Spanish, I passed them on to you on 14 July 1997 with an invitation to make observations. Your reply is dated 28 July 1997.
I am writing now to let you know the result of the inquiries that have been made.

BACKGROUND

The complaint
In his letter to the Ombudsman, the complainant indicated that by decision of 19 December 1996, the Selection Board of open competition Council/C/374 had rejected his application to that competition. Neither the letter of the Selection Board, nor the Notice of the competition indicated any potential means to appeal against the Board's decision.
By fax of 6 February 1996, the complainant forwarded copies of his application as well as the rejection letter from the Selection Board. In this letter, the complainant was informed that he had not been admitted to the written tests of the competition because no documentation had been included with the application for the Board to appraise the complainant's knowledge of a second Community language.
The complainant claimed that he had the right, as a citizen, to contest a decision taken by the Community public administration. However, by not receiving proper information from the Council on these rights, the complainant claimed that he was not able to exercise them.

THE INQUIRY

The Council's opinion
The comments from the Council of the European Union to the complaint are in summary the following:
The Council first pointed out that the complainant had not previously sent any complaint to the institution before seeking redress from the European Ombudsman.
As regards the main claim of the case, namely the alleged lack of means to contest the decision of the Selection Board in open competition Council/C/374, the institution referred to a number of possible options which the complainant could have used.
The Council indicated that under article 91 of the Staff Regulations, the candidate could have appealed against the decision rejecting his application to the Court of First Instance, three months after that decision had been notified (19 December 1996). The Council explained that such an option does not require the lodging of a previous appeal before the institution (art. 90 (2) Staff Regulations).
Alternatively, the candidate could have submitted a complaint to the Selection Board within three months of the notification of the Board's decision in respect of the provisions of art. 90 (2) of the Staff Regulations. 86 candidates whose application had been rejected did so, and lodged a complaint with the Council's Secretary General. In order to ensure a proper consideration of these appeals, the written tests of the competition were scheduled on 26 April 1997, several months after the Selection Board had taken its decision on admission to the written tests.
The Council also explained that according to the relevant case-law of the Court of Justice, in order not to overburden the organization of competitions with a high number of candidates, the Secretariat General is not obliged to draw the attention of candidates whose candidacy is rejected to the existing means of appeal.
Nevertheless, the Council added that in more recent competitions and in order to give candidates an informal means of appeal, the Secretariat General expressly included a provision in the Notice of open competitions, informing rejected applicants that they may request within a brief period the re-examination of their applications by the Selection Board.
The complainant's observations
The Ombudsman forwarded the Council's comments to the complainant with an invitation to make observations.
In his reply, the complainant indicated first that not having been informed by the Council of his rights to appeal, he did not know whether any application to the Court of First Instance required a previous appeal to the Selection Board. The fact that 86 other candidates contested the decision of the Selection Board cannot justify the failure of the Board to inform him of his rights to an appeal, as well as its formalities.
The complainant referred also to the regulation of similar situations by Spanish law, explaining that in accordance with the Spanish Law of Administrative Procedure, the public administration concerned is obliged to inform the recipient of a decision of the means to appeal against it as an essential requirement for the validity of the administrative act. Failure to comply with this requirement would lead to the nullification of the act.

DECISION OF THE EUROPEAN OMBUDSMAN

On the basis of the information provided by the complainant and the observations submitted by the Council of the European Union, the Ombudsman has reached the following conclusions:
Admissibility of the case and further inquiry by the European Ombudsman
1.1 As regards the Council' s argument that Mr B. had not previously complained to the institution, it must be stressed that it is for the Ombudsman to decide whether a complaint is admissible. Community institutions and bodies are naturally welcome to make their views on the subject known to the Ombudsman.
1.2. Under the scheme established by the Treaty and the Statute of the European Ombudsman, the admissibility of complaints is determined by the European Ombudsman in accordance with Community law. Having examined the complaint of Mr B., the European Ombudsman decided that the case fulfilled the criteria required in the Statute, and ought to be declared admissible.
1.3. In order to be admissible, a complaint must be preceded by the appropriate administrative approaches to the institutions and bodies concerned (article 2, par. 4 Statute). In view of the different linguistic versions of this text(1), and taking into account the objective of the provision, the practice of the Ombudsman has been to evaluate whether suitable administrative approaches have been made depending on the circumstances of each specific case.
1.4. Since this case involves a decision taken by a Selection Jury of an open competition, against which the complaint might have directly appealed to the Court of First Instance, the Ombudsman considered that the criteria for the admissibility of the complaint had been met, without further requirements.
Information to be given to the complainant
2.1. In the view of the complainant, his right to contest a negative decision by the Selection Board could not be exercised because he had not been informed of the existence of such a right, let alone of the means for its exercise. The Council has argued, however, that by informing candidates of their means to appeal, the organization of competitions with a large number of candidates would be unduly overburdened.
2.2. In evaluating the decisions taken by a Selection Board, due consideration has to be given to the need to ensure an orderly development of the competition, especially in competitions with a large number of candidates. The Court of Justice itself has taken into account this factor in defining the duty of Selection Boards to give reasons to rejected candidates. Hence, in established case-law, the Court has stated that it may be acceptable in competitions with a large number of candidates that Selection Boards initially send to [rejected] candidates merely information on the criteria for selection and the result thereof, and not give individual explanations until later(2).
2.3. However, the organization of open competitions should not necessarily be disrupted or unduly overburden by the fact that the Selection Board gives through a standard form general information on the means for a potential appeal to rejected candidates.
Adequate information on the rights vested by Community law upon citizens and on the means to protect them is a basic condition for the proper exercise of those rights, and ultimately for their respect. Therefore, in order to follow principles of good administration, the Council should ensure that in its dealings with citizens, they are properly informed of their rights and obligations. Particularly so in cases in which the Council takes the initiative to invite individual applications for open competitions aimed at the recruitment of its civil servants.
2.4. The European Ombudsman takes note, however, of the new policy adopted by the Council in more recent competitions, whereby the Notice of the competition published in the Official Journal now includes a provision stating that rejected candidates may request, within a short period of time, that the Selection Board re-examine their application.
In view of this change of policy by the Council, there are no grounds for the European Ombudsman to further pursue this aspect of the case.
Failure to provide accurate information on the Notice of the competition
3.1. The Selection Board based its rejection of the complainant's application on the grounds that he had not furnished evidence of his knowledge of a second Community language.
3.2. According to the Specific Conditions for the Admission to the Competition (point B of the Notice of the competition), documentation was necessary in relation to education (point a), professional experience (point b), typing skills (point c) and age (point e). Only for these aspects, the Notice of the competition specifically required some type of accreditation by means of certificates or any other written evidence.
3.3. It is good administrative behaviour to provide the most accurate information possible about the conditions of eligibility for a post. This information should enable the applicant to judge whether he should apply for it, what supporting documents are important for the proceedings, and must therefore be enclosed with the application form(3). The Notice of the competition serves the function of properly informing the applicant in that competition of the requirements and conditions to be fulfilled.
In this case, the Notice of the competition did not explicitly state the requirement of submitting documents certifying the knowledge of a second Community language. Under these circumstances, the complainant could not reasonably expect that these documents ought to be forwarded. The Council therefore failed to provide the complainant with clear and accurate information regarding the fact that knowledge of a second Community language had to be supported by written evidence. Such a failure constitutes an instance of maladministration.

CONCLUSIONS

On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

It is good administrative behaviour to provide the most accurate information possible about the conditions of eligibility for a post. This information should enable the applicant to judge whether he should apply for it, what supporting documents are important for the proceedings, and must therefore be enclosed with the application form. The Notice of the competition serves the function of properly informing the applicant in that competition of the requirements and conditions to be fulfilled.

In this case, the Notice of the competition did not explicitly state the requirement of submitting documents certifying the knowledge of a second Community language. Under these circumstances, the complainant could not reasonably expect that these documents ought to be forwarded. The Council therefore failed to provide the complainant with clear and accurate information regarding the fact that knowledge of a second Community language had to be supported by written evidence.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.
Yours sincerely
Jacob SÖDERMAN
cc:
Mr Jürgen TRUMPF, Secretary-General, Council of the European Union

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(1) As stated in the Ombudsman's previous decision on Complaint 45/26.7.95/JPB/PD/B-dk : "There seems to be a slight discrepancy between the different language versions of this provision. The Danish version quite rightly uses the term 'fornødne' and gives the impression that such administrative approaches are necessary. On the other hand, for instance the English, French, German, Spanish and Swedish versions use the terms 'appropriate', 'appropriées', 'geeigneten', 'adecuadas' and 'lämpliga' respectively which seems to imply that suitable administrative approaches must be made". European Ombudsman, Annual Report 1996, page 45.

(2) Case 225/82 Verzyck v. Commission [1983] ECR 1991, par.16.

(3) Case T-158/89, Van Hecken v. ESC, [1991] ECR II-1341