Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The background to the complaint

1. In February 2008, the complainant passed Open Competition EPSO/AST/29/06 for assistants having English as their main language, and her name was put on the relevant reserve list.

2. Between February and March 2009, despite being contacted by several services of the European Commission concerning her possible recruitment as an official, she was not offered any posts with the Commission.

3. On 5 June 2009, the complainant turned to the Ombudsman to complain about the way in which the European Commission treated her during the recruitment procedure. According to the complainant, she was given dates for interviews with the Commission, only later to be informed, orally, that she should not expect to be recruited at her age. Nevertheless, on 9 May 2009, she started working for the Commission on one-week, Belgian contracts, basically carrying out the tasks she would have been executing if she had been recruited as an official from the relevant reserve list.

The subject matter of the inquiry

4. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The complainant alleges that the European Commission discriminated against her on the basis of her age during the recruitment procedure in which she took part.

Claim:

The complainant claims that the Commission should rectify the situation.

The inquiry

5. On 23 July 2009, the Ombudsman asked the Commission to submit an opinion on the above allegation and claim by 30 November 2009.

6. The Commission sent its opinion to the Ombudsman on 3 December 2009. The opinion was forwarded to the complainant, who submitted her observations on 25 January 2010.

The Ombudsman's analysis and conclusions

A. The allegation that the Commission discriminated against the complainant on the basis of her age

Arguments presented to the Ombudsman

7. In her complaint, the complainant explained that, in early 2008, she successfully passed Open Competition EPSO/AST/29/06 for assistants having English as their main language, and her name was put on the relevant reserve list. At the time she signed up for the competition, she had four years to go before reaching the retirement age of 65. By the time her name was put on the reserve list, there were only two years left. She had never made a secret of her age, so when she received urgent e-mail messages about vacant positions within the Commission, she assumed that the messages were serious, and that the responsible Human Resources personnel had actually looked at her CV before contacting her.

8. In February 2009, she received an invitation for an interview which went well. The Head of Unit expressed the wish to hire her, and there was even talk of her obtaining an exception to the mandatory retirement age, so that she could work until the age of 67. Later, however, she received a telephone call from the Commission, during which, according to the complainant, she was told that she should be reasonable and understand that she could not be hired as an official at her age. She was, therefore, referred to an agency that handles interim personnel for the Commission. On 9 March 2009, she started working for the Commission on the basis of one-week, Belgian contracts.

9. In its opinion, the Commission argued the following. First, according to the settled case-law, the Commission is under no obligation to recruit any candidate whose name has been put on the reserve list. Nor does any candidate have "the right to be recruited by the Commission due to the mere fact that he/she successfully passed a competition, but simply the 'vocation' to be recruited[2]".

10. Second, in line with Article 2 of the Staff Regulations, only the Appointing Authority can decide on matters of recruitment. In the case at hand, this competence was delegated to the Head of Unit of Directorate-General Administration (DG ADMIN) A.4. However, no employment offer was ever addressed to the complainant by the Appointing Authority. In this respect, the Commission considered as not relevant the fact that the complainant was contacted by several Directorates-General for possible interviews. The Commission repeated that if a candidate is placed on a reserve list following an open competition, this does not guarantee that he or she will be recruited by the Commission. It went on to point out that this was clearly explained to the complainant and that the documents attached to her complaint clearly mention that there was only a possibility that she might be recruited. There was no mention of there being a certainty that she would be recruited, or that she had a right to be recruited.

11. Third, no DG of the Commission submitted an official request to the Appointing Authority asking for the complainant's recruitment. Therefore, a recruitment procedure involving the complainant was never even initiated by any of the Commission services.

12. Finally, with regard to the complainant's statement that she was told over the telephone that she was not recruited because she was too old, the Commission stated that, without further information about the person in Directorate-General Administration (DG ADMIN) with whom the complainant ostensibly had this telephone conversation half a year ago, it was difficult to even verify whether such a telephone call ever took place, let alone its particular content. Since the complainant did not provide any further proof to corroborate her statement, the Commission considered that it was not supported by sufficient evidence.

13. In her observations, the complainant maintained her complaint and voiced her objection to what she considered to be the contemptuous tone of the Commission's opinion. She pointed out that in February 2009, she was first contacted by an official from the Commission's Directorate-General Internal Market and Services (DG MARKT) about "various vacant posts". When she confirmed her interest and availability, she was invited for an interview, which took place on 12 February 2009. During the interview, the Commission official, Mr V., "was agreeable to hiring her if 'she promised to stay until [the age of] 67'." However, on 18 February 2009, another Commission official, Mr.S., called her and stated that she should not expect to be hired so close to retirement. According to the complainant, the official added that "you would have such a small pension anyway", and that, in any case, exceptions to the mandatory retirement age of 65 were only made in exceptional cases. The complainant finally worked for DG MARKT from March 2009 until August 2009 on a contractual basis. At the same, the job that was refused to her was advertised within the Commission. The complainant considered that this indicated that she had in fact been "dropped from consideration".

14. The complainant also observed the circular nature of the Commission's argument that there was no discrimination during the recruitment procedure simply because no recruitment procedure took place. Indeed, her allegation was that there was no recruitment procedure because she was discriminated against on the basis of her age. She took the view that the Commission blocked the possibility for her to obtain an appointment as an official by discriminating against her on the basis of her age, but considered her good enough to do the same work as a "second class outsider". She went on to state that another Commission official confirmed that this seemed to be discrimination on the basis of age but that she "would not be able to do anything about it unless she had something in writing".

15. Concerning the Commission's argument that her contacts with several DGs for a possible interview were not relevant, she observed that they were indeed relevant to the case. In her view, these contacts showed that it was not only DG MARKT where she was "blocked": the Commission's Directorate-General for Employment, Social Affairs and Equal Opportunities (DG EMPL) also cancelled a scheduled interview, and the Commission's Joint Research Centre in Karlsruhe informed her orally that it would not be possible to recruit her through the Commission's Directorate-General for Administration. The complainant raised the question of whether the Commission would not itself consider that the initial e-mail contact, and the subsequent events, formed part of a recruitment procedure.

The Ombudsman's assessment leading to the draft recommendation

16. The Ombudsman first recalls that the Treaty on European Union[3] provides, in Article 2, that:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

17. This is further reinforced in the Treaty on the Functioning of the European Union[4], which provides, in Article 10, that:

"In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

18. Similar provisions are found in the Charter of Fundamental Rights of the European Union, which, in Article 21 (Non-discrimination), provides:

"1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited."

19. With regard to the application of these general and fundamental principles and rights, the Ombudsman refers to paragraph 46 of his assessment below.

20. In the present case, the complainant alleged that, in the procedure leading to her possible employment as an official, she was discriminated against by the European Commission, on the basis of her age.

21. It is useful to recall the exact exchange of correspondence between the complainant and the Commission's services. In this context, the Ombudsman notes that three different categories of e-mail communications are relevant here.

Correspondence with the Commission's Directorate-General for Employment

22. On 3 February 2009, the Commission's Directorate-General for Employment (DG EMPL) wrote to the complainant:

"I have retrieved your CV from the 2006 competition list which is opened at this stage for all the EU institutions. And I would like to understand your availability and your interest for two offers of a secretary position in the Directorate F in charge of Social Dialogue, Social Rights, Working Conditions, Adaption to Change. I give you the web site link on our activities in DG EMPLOYMENT: [link] Please contact me as soon as possible in order to go on in a possible recruitment after interview. Looking forward to hearing from you."

23. On 4 February 2009, at 14:39, the complainant replied:

"Thank you for your e-mail. I am indeed very much interested in a secretarial position at your Directorate and will be available for an interview whenever it suits you."

24. On the same day, at 15:24, DG EMPL replied:

"Many thanks for your response and I would like to schedule a date for an interview. I suggest next week: - Monday [9 February 2009] afternoon any time since 14:30; - Wednesday [11 February 2009] 15:00 or 16:00; - Thursday [12 February 2009] in the morning 10:00 or 11:00 or 12:00 or 12:30. Looking forward to hearing from you."

25. Again on the same day, at 15:49, the complainant replied:

"Thursday 12 February 2009 at 10:00 hrs. Please let me know precise address & metro stop?"

26. Finally, also on the same day, at 19:26, DG EMPL replied:

"I have to cancel for the time being your appointment for interview next week on request of the Head of Unit and I will contact you again as soon as the situation will be favourable."

27. On 23 March 2009, the complainant wrote to DG EMPL:

"May I ask what happened here? Thank you."

28. The complainant did not receive a reply to her e-mail of 23 March 2009.

Correspondence with the European Commission, Directorate-General for Internal Market and Services

29. On 6 February 2009, the Commission's Directorate-General for Internal Market and Services (DG MARKT) sent the following e-mail to the complainant:

"You have passed a competition for secretaries a few time ago. I am in charge of secretaries recruitment for DG Internal Market (DG MARKT) and I am looking for secretaries for various vacant posts. If you are interested, could you please call me as soon as possible on [number] … Thank you very much in advance."

30. On 8 February 2009, the complainant replied:

"Yes I passed the competition in January 2008, in English and German. I am very much interested in working at your Directorate and will be able to come in for an interview at your convenience. Since I am unemployed at the moment, I could start work on short notice. Looking forward to hearing further from you."

31. On 17 February 2009, DG MARKT wrote to the complainant:

"My Head of Unit, Mr S., would like to speak to you about the interview you had last week with Mr V. Could you please send me your phone number please. Thank you very much in advance."

32. On 18 February 2009, the complainant sent the following e-mail to DG MARKT:

"Earlier today, Mr S. called me and we had a respectful conversation on the feasibility of my being hired for a permanent position. Apparently, the option that Mr V. had mentioned and that I would have agreed to without hesitation, namely working beyond pension age until 67, is only possible in exceptional cases for higher-level personnel. I accept this rationale. Thank you for taking my candidacy seriously."

33. On 19 February 2009, DG MARKT wrote to the complainant again:

"Thank you for your mail. I tried to call you this morning but without success. Mr S. spoke to Mr V. about your proposal to work as an interim for him and he agrees with that. The Commission would, in principle, accept that you work after your 65 years but, as a start, you will only have a 6 months contract. After that period, we will decide if the contract can be extended or not (after a break of one month mandatory for all interim contracts). Could you please register yourself in the following Interim Agency which works with the Commission:

Start People [address + telephone number]

If you could do that quickly, you could already start in DG Markt on 1/3. My colleague, Ms S, who is responsible for interimaires can give you all the information needed. Do not hesitate to contact her, if necessary. Hoping to see you in a very near future."

34. On the same day, the complainant replied:

"That is good news! I was out today getting ready for my ski vacation, I will be gone from tomorrow afternoon 20Feb09 until Sunday 1Mar09. Before I go tomorrow, I will definitely call Start People (with whom I have been registered since last year but never heard from) and your colleague Ms S. to get details worked out. This is a good solution. Thank you and I will be in touch."

35. On 9 March 2009, the complainant started to work for the Commission on the basis of one-week, Belgian contracts.

Correspondence with the European Commission's Joint Research Centre in Karlsruhe

36. On 24 March 2009, the complainant wrote to the Commission's Joint Research Centre in Karlsruhe (JRC):

"I am a laureate of EPSO competition AST/29/06, secretary with main language English, second language German. My mother tongue is NL Dutch, so I have three actual working languages. My candidate number is [number]. My cv includes working at the [firm] from 1978-1979 and at Karlsruhe University from 1985-2001. The fact that I want to work for the Commission and would like to return to Germany compel me to ask for your help in finding an assignment with JRC-Karlsruhe, even if there is no vacancy listed right now.

37. On 30 March 2009, the JRC replied:

"At present, we have an open position (AST1/7 Secretary to the Head of Unit), and your professional profile could fit the job requirements. Therefore, we send you enclosed the relevant job description resp. the publication, and we would like to know from your side if it is interesting for you. Furthermore, we have already scheduled some potential dates for a possible interview (in case you might be interested by this job) as follows: - 23rd, 24th, 28th, 29th or 30 April 2009 (starting at 09h00 a.m.); - 27th April 2009 starting at 14h00 p.m. We would be pleased to receive your answer as soon as possible, and we would be grateful if: - one of these days is convenient for you, and - you could send us an updated CV. Please do not hesitate to contact me if you have further questions."

38. On 1 April 2009, the JRC wrote to the complainant again:

"We wish to inform you that each vacant post is first published internally. Whenever a post cannot be filled through internal transfer, the files of all candidates who succeeded in a competition are examined in way to find a corresponding professional profile with the post published. We can assure you that the list of laureates EPSO/AST/29/06 will be examined as soon as an opportunity will be. We thank you for your interest in the activities of the Joint Research Centre."

39. It is apparent from the above e-mail exchanges that the Commission never put in writing that the complainant could not be hired as an official due to her age.

40. However, in her complaint, the complainant argued that she was told orally that she "should not expect to be hired so close to retirement" and that she "would have such a small pension anyway". In this regard, the Commission argued that, without further information about the person with whom she had this conversation, it was difficult to even verify whether such a telephone call had taken place, let alone its particular content. The Ombudsman agrees with the Commission that it is difficult to verify the content of oral conversations of which there is no record. However, in her observations, the complainant stated that she received a call on 18 February 2009 from Mr S. from DG MARKT, during which she was told of the above considerations. This information might help the Commission to trace and examine the relevant events. This is what the Ombudsman asks it to do in his draft recommendation below.

41. The Ombudsman also reminds the Commission that the issue at hand concerns recruitment procedures in the relevant conversations of which suggestions were made, from the outset that it might be possible to recruit the complainant. Two of the three procedures referred to above started with a written communication, initiated by the Commission, namely, the letter dated 3 February 2009 from DG EMPL, and the letter dated 6 February 2009 from DG MARKT. In these letters the complainant was asked, in view of her name being included on the relevant EPSO reserve list, whether she was interested in being appointed in certain posts at the Commission, as an official.

42. Both of these procedures, as well as the procedure which the complainant initiated with the JRC in Karlsruhe, appear to have come to a sudden halt resulting to the complainant's not being recruited as an official. It is essential to note that the Commission did not attempt to provide any explanations, either to the complainant, or in the course of the present inquiry, as to why these recruitment procedures came to a halt[5]. Instead, in its opinion, the Commission referred, in a remarkably formal manner, to facts and rules of which the Ombudsman is fully aware, and which have little relevance to the case. For example, the Commission stated that it is under no obligation whatsoever to recruit persons on EPSO reserve lists; such persons have no legal right to be recruited; the Appointing Authority is solely competent to decide on matters of recruitment, and that it never made the complainant a formal written offer of recruitment.

43. The Ombudsman also notes that the complainant worked for the Commission as a member of its interim personnel, on a contractual basis. According to the complainant, she was carrying out the same tasks she would have been carrying out if she had been recruited as an official. The Commission did not contradict these statements. In such circumstances, the Ombudsman finds it difficult to understand why the complainant, whose name appeared on the relevant EPSO reserve list, was not deemed suitable for recruitment as an official for a position that she actually went on to occupy, albeit as an interim agent.

44. The Ombudsman also notes that the Commission did not explicitly deny the complainant's allegation that she was discriminated against on the basis of her age. The Commission simply stated in its opinion that the complainant "has not sufficiently substantiated her allegation". The Commission, furthermore, did not, despite the obvious issue of fundamental EU rights here involved, provide any reassurance that the complainant's age was not an obstacle to recruitment during the relevant period of time here concerned.

45. As regards the recruitment procedure itself, the Ombudsman agrees with the complainant that the Commission's argument is circular, namely, that there was no discrimination during the recruitment procedure, because no recruitment procedure was initiated. In this regard, the Ombudsman points out that a recruitment procedure does not start when the Commission's relevant service submits an official request to the Appointing Authority for a candidate to be recruited as an official. At such point in time, the Commission must surely have identified several persons on the relevant EPSO reserve list, contacted the persons identified about their availability and interest in the vacant posts, and invited them for an interview, maybe even for several interviews. These steps necessarily form part of a recruitment procedure, during which the principle of non-discrimination must be respected and guaranteed.

46. Further to the above findings and considerations, the Ombudsman notes that Article 10(1) (Burden of proof) of Council Directive 2000/78 of 27 November 2000, establishing a general framework for equal treatment in employment and occupation[6], provides as follows:

"Member States shall take such measures as are necessary … to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment." (emphasis added)

47. Article 1(d)(5) of the Staff Regulations, applicable to EU officials, contains the same rule[7].

48. The above provisions set out the established Union law approach to the burden of proof in cases such as the one at hand. The question is, therefore, whether the facts of the present case may reasonably give rise to the presumption that the complainant was discriminated against on the basis of age, and whether the Commission must prove the contrary. In the Ombudsman's understanding, the kind of 'presumption' here referred to does not, in itself, imply a provisional finding that discrimination actually occurred. Rather, this specific legal notion of a 'presumption' is a mechanism that, in the first place, allows for a higher degree of transparency in relation to the acts or omissions in question. It goes without saying that the decision-maker, in this case the Commission, is in a better position to explain why it acted as it did.

49. As an overall assessment, the Ombudsman finds that the facts and circumstances of the present case may reasonably give rise to the above-mentioned presumption. His findings are based, in particular, on the facts outlined below.

50. The complainant, at the relevant time, was not simply slightly older than the average person recruited from reserve lists. On the contrary, she was only a few years under the normal retirement age of EU officials. It is, therefore, obvious that her age would very likely draw the attention of a potential employer, including the Commission. A view to the contrary would imply that employers are indifferent to the age of applicants, which, as is well known, is not the case.

51. Furthermore, the complainant was formally contacted, in writing, by the Commission services that initially expressed an interest in recruiting her. The recruitment procedure came to a sudden halt, the reasons for which remain unknown. The Commission has not provided any relevant explanations, either to the complainant directly, or to the Ombudsman in the course of the present inquiry. On the contrary, it has put forward a line of argumentation that is particularly defensive, highly formalistic, and insensitive to the issues here involved. Likewise, there is nothing in its opinion which suggests that it actually carried out an internal inquiry into the events which led up to the complaint. It is worth recalling here that the complainant pointed out that she was recruited, as an interim, to carry out the very same tasks she would have been carrying out if she had been recruited as an official. The Commission did not deny this submission. The sudden halt to the procedure in recruiting her as an official was, therefore, presumably not due to her lack of competence. The reason must lie elsewhere, but the Commission has taken no steps to clarify this aspect of the case.

52. In addition to not explaining why the recruitment procedures in this case came to a sudden halt, the Commission has made no attempt to provide information or reassurance with regard to the lawfulness of its recruitment practices in relation to equal treatment and age. Such information and assurances, if convincing, could constitute a factor that would reduce the likelihood of finding a presumption of discrimination.

B. The draft recommendation

On the basis of his inquiries into this complaint, the Ombudsman makes the following draft recommendation to the European Commission:

If the Commission considers that its services' decision not to recruit the complainant as an official from the reserve list was unrelated to her advanced age, it should, in line with the principle of reversal of the burden of proof here applicable, submit proof that no such age discrimination occurred in this case.

If, following its further examination of the case internally, the Commission concludes that the complainant was, or even might have been, the victim of age discrimination, it should pay appropriate compensation. The Ombudsman leaves it to the Commission to determine and propose to him what it considers to be an equitable, fair and appropriate level of such compensation.

In addition to the above, the Ombudsman would be grateful to receive information from the Commission regarding any specific internal rules and/or guidelines that it has adopted, and distributed to all its relevant staff, in order to avoid discrimination on the basis of, amongst other things, age.

The Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 30 June 2011. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 10 March 2011

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] The inclusion of candidates who have succeeded in open competitions on the lists of suitable candidates drawn up as a result of selection procedures merely renders those concerned eligible to be appointed probationary officials (see, to that effect, Cases T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, paragraph 21 and T-58/05 Centeno Mediavilla e.a. v Commission [2007] ECR II-05253, paragraph 52). As regards the Appointing Authority's discretion with respect to recruitment from the lists of suitable candidates, see Case T-494/04 Neirinck v Commission [2006] ECR-SC I-A-2-259 and II-A-2-1345, paragraph 105.

[3] OJ 2008 C 115, p. 13.

[4] OJ 2008 C 115, p. 13.

[5] By e-mail of 23 March 2009, the complainant explicitly asked the Commission to explain what had happened with the recruitment procedure.

[6] OJ 2001 L 303, p. 16.

[7] Article 1(d)(5) of the Staff Regulations provides: "Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. This provision shall not apply in disciplinary proceedings."