Strasbourg, 7 November 2006

Dear Ms S.,

On 15 July 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open competition EPSO/A/2/03 for assistant administrators (Czech nationals) in the field of "Economics".

On 23 September 2004, I forwarded the complaint to the Director of EPSO.

On 22 December 2004, EPSO sent its opinion in French and on 7 January 2005 in English.

On 12 January 2005, I forwarded EPSO's opinion to you with an invitation to make observations. On 11 February 2005, you sent me your observations.

On 3 March 2005, I asked EPSO to provide me with further information. On the same day, I informed you of my request to EPSO. However, my letter was returned to me marked 'undeliverable' on 18 April 2005.

Also on 18 April 2005, I received EPSO's answer in English.

On 20 June 2005, you informed my services by telephone of your change of name from V. to S.. On 21 June 2005, I sent you copies of my request to EPSO for additional information and of EPSO's answer, with an invitation to make observations.

On 27 September 2005, my services called you in order to discuss the possibility of a friendly solution to your complaint.

On 20 October 2005 I sent to EPSO my proposal for a friendly solution to your complaint. I forwarded a copy of the proposal to you for information on the same day.

On 24 November 2005, EPSO replied to my proposal in French, and on 5 December 2005, it sent me a translation of that reply into English, which I forwarded to you with an invitation to make observations.

On 30 January 2006, you sent me your observations on EPSO's reply to my proposal for a friendly solution to your complaint.

On 10 March 2006, I sent a further letter concerning your case to EPSO.

On 12 April 2006, EPSO replied to that letter and on 26 April 2006, I sent a copy of that reply to you with an invitation to make observations. No reply appears to have been received from you.

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

THE COMPLAINT

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

The complainant obtained a bachelor's degree in international trade from the University of Economics in Prague and a master’s degree in European economic studies from the College of Europe in Bruges.

She participated in Open competition EPSO/A/2/03 for assistant administrators of Czech citizenship in the field of "Economics".

In December 2003, she took part in the pre-selection tests and subsequently submitted copies of the documents relating to her qualifications. EPSO informed her that her application could not be accepted.

On 19 April 2004, she asked EPSO to reconsider the decision to reject her application.

On 11 June 2004, EPSO informed her that her application had not been accepted on the ground that her bachelor's degree and her one year post-graduate degree did not fulfil the condition for admission to the competition that a candidate must have an academic degree that gives access to doctoral studies, as required by the notice of competition. Therefore the Selection Board upheld its original decision.

On 20 July 2004, the complainant informed EPSO that in July 2004, she had been admitted to doctoral studies at the Charles University in Prague.

On 26 July 2004, the complainant lodged a complaint with the European Ombudsman.

The complainant alleged that EPSO did not assess her academic degrees correctly, when stating that they did not give her access to doctoral studies. The complainant argued that, on the basis of these degrees, she was admitted for doctoral studies at the Charles University in Prague.

She claimed that EPSO should reconsider her qualifications and admit her to the competition.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

According to the notice of competition, candidates had to have successfully completed either a full course in economics at university level and have obtained an accompanying degree, or a full course at university level and have obtained an accompanying degree, followed by a postgraduate certificate of studies in economics. The notice of competition also specified that a candidate’s degree should give access to doctoral studies. At the same time as the notice of competition was published in the Official Journal, the Guide for candidates was also published on EPSO's website. The Guide indicated for every country the required degree or degrees(1) (in the case of the Czech Republic, the "bakalár" of four years).

The complainant passed the pre-selection tests and sat the written tests. Afterwards, she was invited to complete the application form from EPSO's website and send it to EPSO so that the Selection Board could decide on her admission, which the complainant did. On the application form, she stated that she had obtained a “Bachelor in International Trade” at the University of Economics in Prague and a “Master of Arts in European economic studies” at the College of Europe in Bruges. The Selection Board decided that the complainant's application was not admissible and thus her written tests could not be checked because, on the basis of the information provided in her application, on the closing date for applications, she had not satisfied the admissibility condition as regards her qualifications: her "bakalár" was of three years duration and thus the level of her degree did not give access to doctoral studies.

After receiving this decision, the complainant addressed EPSO for further information and, on 19 April and 20 July 2004, she asked EPSO to reconsider its decision, stating that her qualification was of the level required for the competition. On 11 June 2004, EPSO informed the complainant that the Selection Board had re-examined her application but had maintained its initial decision.

EPSO pointed out that the complainant did not provide the Selection Board with the documents showing that she had been admitted to doctoral studies by the Charles University in Prague. In this context, EPSO recalled the established case-law according to which it is the responsibility of the complainant to provide the Selection Board with all the information it considers necessary to examine the application, in particular when the candidates are told that they must attach certificates (Case T-214/99 Carrasco-Benitez v Commission, paragraph 76).

EPSO also put forward that the Selection Board made a detailed examination of the arguments put forward by the complainant and took account of information provided by the Czech authorities in order to reach a decision in full knowledge of the facts. In this context, EPSO recalled that it is the individual Member States that determine the level of a qualification and whether it provides access to a higher level of studies (in this case, doctoral studies). EPSO concluded, therefore, that since the notice of competition and the Guide for candidates clearly set out the requirements for admission to the competition and since the complainant's academic qualification did not comply with these requirements, the Selection Board could not admit her to the competition.

The complainant's observations

The complainant's observations can be summarised as follows:

The complainant took the view that the documents she had submitted with her application in due time were sufficient to prove her eligibility for the competition. The complainant considers that the minimum level of studies required in order to be admitted to the competition was that the candidate's degree should give access to doctoral studies. Since it is the obligation of the Member States to determine what level of education gives access to doctoral studies, candidates should not be required to prove this to EPSO.

In the complainant's view, her letter to EPSO dated 20 July 2004, in which she argued that she had been admitted to doctoral studies at the Charles University in Prague on the basis of her degrees, should not be regarded as bringing up evidence as regards her eligibility (given that she had been admitted to doctoral studies after the closing date for applications) but as pointing out the error in EPSO's assessment that the level of her education does not give her access to doctoral studies. Finally, the complainant noted that, according to Czech legislation, in general the regular "bakalár" degree requires three years of study.

Further inquiries

After careful consideration of EPSO's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The request for further information

Since EPSO had pointed out in its opinion that the Selection Board took account of information provided by the Czech authorities in order to decide about the level of the complainant's degree, the Ombudsman asked EPSO to inform him whether such information concerned specifically the complainant's case, or whether it was related to the general issue of the minimum level of studies which the Czech candidates had to have completed in order to apply for the competition in question, as specified in the Guide for candidates.

EPSO's reply

EPSO first stated that it is for the Member States to decide the level of degrees and therefore which ones give access to doctoral studies. Moreover, since the organisation of university education comes within the competence of the Member States, the rule imposing on Member States and the Community institutions mutual duties of sincere cooperation requires the institutions to have regard to the rules adopted by the Member States within the framework of that competence. (EPSO quoted the relevant case-law: Case 108/88 Jaenicke Cendoya v Commission [1988] ECR 2739, paragraphs 49-51, and Case T-2/90 Ferreira de Freitas v Commission, [1991] ECR II-103).

Therefore, EPSO contacts the national authorities in order to obtain all the relevant information concerning national educational systems. That information is given in general terms. On the basis of such information and after analysing each of the files, the Selection Board assesses the candidates' qualifications.

In a number of cases, however, EPSO needs to assist the Selection Board and ask the national authorities for more information. In the case of the complainant, EPSO contacted the University of Economics in Prague which confirmed that the candidate's bachelor's degree in international trade was of three years duration. Therefore, in view of the rules set out in the notice of competition and of the information provided in the Guide for Applicants, the Selection Board could not admit the complainant to the competition. EPSO recalled that the notice required that the degree obtained had to give access to doctoral studies and that the Guide for candidates expressly stated that the "bakalár" degree had to be of a duration of at least four years.

Finally, EPSO recalled that according to case-law, the condition that a candidate must possess a degree giving access to doctoral studies should not be considered as arbitrary (Case T-249/01 Boixader Rivas v Parliament [2001] ECR II-7489, paragraph 36).

The complainant's observations

A copy of this reply was forwarded to the complainant. No written observations were received from the complainant.

In telephone communications with the Ombudsman’s services on 20 June and 27 September 2005, the complainant stated that she understands that it is no longer possible for her to participate in the competition in question, given that the procedures have been completed. However, she would be interested in participating in a future competition in the same field and in being informed of the timing of the next such competition.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and the complainant's observations, the Ombudsman was not satisfied that EPSO had responded adequately to the complainant's allegation and claim.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal to EPSO for a friendly solution:

EPSO could consider offering an apology to the complainant for the error in the assessment of her degrees, which did in fact give her access to doctoral studies.

This proposal was based on the following considerations:

The Ombudsman first recalled that, according to established case law(2), the appointing authority enjoys wide discretion in establishing the conditions required for a post and in assessing the candidates' qualifications and thus in judging whether these qualifications are sufficient for the admission to the competition.

The Ombudsman noted that EPSO appeared to fuse the admissibility condition that the complainant's degree should give access to doctoral studies as required in the notice of competition with the information in the Guide for candidates that a "bakalár" degree from the Czech Republic should be of four years duration. The Ombudsman pointed out that the Guide only has an informative character and that the notice of competition only required that the degree obtained after a full course of university studies should give access to doctoral studies.

The Ombudsman observed that, according to EPSO, the Czech authorities provided EPSO only with general information concerning the Czech education system and the duration of the complainant's "bakalár" degree in international trade.

The Ombudsman noted that the complainant applied for the competition on the basis of her two degrees: the bachelor's degree of three years’ and the master’s degree of one year’s duration. On the basis of the same degrees, the complainant was in fact admitted to doctoral studies in the Czech Republic although the Selection Board had assessed that she could not be. The Ombudsman therefore considered that the assessment by the Selection Board was clearly erroneous.

Finally, the Ombudsman pointed out that it is good administrative practice to acknowledge and apologise for errors that may occur. Therefore when EPSO received the complainant’s letter of 20 July 2004(3), it would have been appropriate for it to have accepted that the Selection Board’s assessment had been wrong.

As regards the complainant’s claim, the Ombudsman informed EPSO that the complainant (i) understands that it is no longer possible for her to participate in the competition in question and (ii) would be interested in participating in a future competition in the same field and of being informed of the timing of the next such competition.

In view of point (ii) above, the Ombudsman suggested that it would facilitate a friendly solution if EPSO could also agree to inform the complainant of the timetable for the next competition in the same field.

EPSO's reply

EPSO's reply can be summarised as follows.

EPSO emphasised that an authority that agreed to a friendly solution must have the power to implement (or have implemented) the measures that such a solution involved.

In this regard, EPSO pointed out that there was a strict division of responsibilities for competitions between the Selection Board and EPSO: the former is responsible for determining whether candidates meet the specific conditions laid down in the notice of competition (including their qualifications), whereas the latter must ensure that the competitions it publishes are correctly organised. EPSO therefore has no authority to annul a decision taken by the Board nor could it legally give instructions to the Board.

EPSO also pointed out that the Board examined the complainant's qualifications on the basis of the information available to it at the time, and that point A.II.1 of the notice competition, which provided the legal framework within which the Board must work, laid down the following requirements for candidates to apply for the field 03 (Economics):

"You must have successfully completed either:

-a full course in economics at university degree and obtained a degree, or

-a full course at university level and obtained a degree, followed by a postgraduate certificate of studies in economics."

In addition, EPSO stated that "the Guide for candidates not only provided examples of diplomas but also specified that a full course in economics at university level in the Czech Republic corresponded to four years of studies". In this context, EPSO stressed that the notice of competition stipulated that candidates had to have completed a full course in both cases, whether or not it was in the field of economics.

It appeared from the complainants' file that she had completed a three-year rather than a four-year university-level course in economics. The degree awarded by the College of Europe could have been taken into account if the complainant had previously obtained a university degree attesting to her having completed a full four-year course.

EPSO also stated that the Selection Board based its decision on the admissibility of the complainants' application on the documents she had provided before the deadline for the receipt of applications. The Board did not request from her any additional information, but it was not obliged to do so according to the relevant case-law. On 8 July 2004(4), the complainant wrote to the Chairman of the Board, through EPSO, stating that she had been admitted to doctoral studies on the basis of the two degrees she had obtained "but provided no proof which the Board could not in any case have taken into account since the deadline had passed". In this context, EPSO recalled that point C.3 of the notice of competition stipulated that candidates had not only to complete the application form but also to enclose all the necessary supporting documents.

Finally, EPSO stated that "it is extremely sorry if the conclusions reached by the Selection Board after examining the complainant's file were not the same as those reached by a university".

As regards the Ombudsman’s suggestion that EPSO inform the complainant of plans for future competitions, EPSO stated that it had already published its forward programme of competitions on its internet site (http://europa.eu.int/epso/index_en.htm) and that it planned, inter alia, to organise a competition for AD5 administrators during the first half of 2006, for which the complainant could apply. However the exact dates of publication and the fields concerned had not yet been finalised. Moreover, EPSO drew the complainant's attention to the fact that, under the new statutory provisions in force since 1 May 2004 for appointment as an official in the AD function group, candidates had to have completed the equivalent of a three-year course at university level for grades 5 and 6, and a course of four years or more for grades 7 to 16.

The complainants' observations

In summary, the complainant stated that she did not regard EPSO's statement as an apology and asked the Ombudsman to request EPSO to reconsider the wording of its reaction to the proposal for a friendly solution.

In case further action by the Ombudsman should not produce satisfactory results, the complainant asked the Ombudsman to advise her how to proceed in this matter not only for her own benefit, but also to avoid any similar maladministration in the future, especially with regard to the citizens of the new Member States.

The Ombudsman’s letter of 10 March 2006

Having examined EPSO's reply to his proposal for a friendly solution and the complainant's observations, the Ombudsman took the view that it would be useful for EPSO to have the opportunity to clarify its position. Therefore, the Ombudsman sent an additional letter to EPSO.

The letter recalled the following key facts of the case: (i) the Selection Board excluded the complainant on the ground that her qualifications did not give her access to doctoral studies; (ii) the Charles University in Prague (the oldest in Central Europe and one of the most prestigious in the Czech Republic) admitted the complainant to doctoral studies; (iii) the complainant wrote to the Selection Board to point out that its assessment of her qualifications had been erroneous and that this was confirmed by the decision of the Charles University to admit her to doctoral studies.

The Ombudsman took the view that EPSO’s reply to the friendly solution proposal did not constitute an apology or an acknowledgement of error.

The Ombudsman pointed out that his proposal was that EPSO could consider offering an apology to the complainant for the error in the assessment of her degrees. The Ombudsman did not suggest that EPSO should annul the Selection Board’s decision, nor that it should give instructions to the Board. Moreover, the Ombudsman's view that an apology is due to the complainant is not based on the idea that she was entitled to annulment of the Selection Board's decision, or that she could have obtained such an annulment through judicial proceedings. As the Court of First Instance has recognised, a finding of maladministration by the Ombudsman does not necessarily imply that there is illegality that could be sanctioned by the Court(5). The Ombudsman’s view that an apology is appropriate is based on the principles of good administration, one of which is to acknowledge and apologise for errors(6).

The Ombudsman considers that an apology is due to the complainant, whose qualifications did give her access to doctoral studies in the Czech Republic as is proved by the fact that the Charles University admitted her to doctoral studies. The Selection Board, which reached the conclusion that her qualifications did not give her access to doctoral studies was therefore in error, although this does not necessarily imply that the Selection Board should be criticised. Nor does it imply any legal liability towards the complainant. The Ombudsman furthermore pointed out that the question therefore arises as to who should give an apology to the complainant. The Ombudsman pointed out in this regard that candidates in competitions organised by EPSO communicate with EPSO. Moreover, in the event of complaints to the Ombudsman, it is EPSO which replies. The Ombudsman therefore took the view that it is appropriate for EPSO to apologise to candidates if a Selection Board makes an error. The Ombudsman also took the view that it is within EPSO’s powers to do so, since an apology would not constitute an instruction to the Selection Board, nor an annulment of its decision. Nor would it necessarily imply that the Board should be criticised, or that the complainant could have obtained a judicial remedy.

The Ombudsman therefore asked EPSO to reconsider its reply to the proposal for a friendly solution.

EPSO's reply to the Ombudsman's letter of 10 March 2006

In reply, EPSO stated that had any errors been committed, EPSO would apologise to the complainant on its own behalf and on behalf of the Selection Board.

EPSO pointed out in this connection that, although an instance of maladministration does not prejudge whether there has been a breach of a legal requirement, EPSO, which would act on behalf of the Selection Board, could not ignore the existence of a manifest error of assessment and would have to notify the candidate. In such a case, the appointing authority would thus inevitably be bound by an illegal decision adopted by a Selection Board, while it is obliged to take decisions which are free of irregularities.

As regards the present case, the Selection Board did not commit an error in rejecting the complainant. It took a decision after examining her file, on the basis of the documents which the complainant had produced by the closing date for submitting applications. Since she had not presented all the documents which could have enabled her to be admitted to the competition, the Selection Board could not conclude that she possessed the level required by the notice of competition.

In her request for a review dated 19 April 2004, the complaint informed the Board: "I will in a few days apply for a PhD degree programme at the Charles University in Prague". This information in no way constitutes proof of her admission to this university for the purpose of pursuing doctoral studies. Since the complainant provided only information and not a supporting document, the Selection Board could not take a different decision, without going against both the wording of the notice of competition and the principle of equal treatment for all candidates. The Selection Board fully complied with the procedure and did not therefore commit any error in rejecting the complaint's application.

Finally, EPSO made the following statement:

“If the complainant had access to doctoral studies in the Czech Republic, it was her responsibility to supply the necessary proof. This she failed to do, EPSO can only regret the lack of diligence on the part of this candidate.”

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Assessment of academic qualifications

1.1 The complainant obtained a bachelor's ("bakalár") degree in international trade from the University of Economics in Prague and a master's degree in European economic studies from the College of Europe in Bruges. She participated in Open competition EPSO/A/2/03 for assistant administrators of Czech citizenship in the field of "Economics" but was excluded. In April 2004, the complainant asked for reconsideration, but her exclusion was confirmed on the ground that her academic qualifications did not fulfil the condition that a candidate must have an academic degree that gives access to doctoral studies.

In July 2004, the complainant informed EPSO that she had been admitted to doctoral studies at the Charles University in Prague that month.

The complainant alleges that EPSO did not assess her academic degrees correctly, when stating that they did not give her access to doctoral studies.

The complainant claimed that EPSO should reconsider her degrees and admit her to the competition.

1.2 EPSO took the view that the Selection Board did not commit an error by excluding the complainant from the competition. The Selection Board could not admit the complainant in view of the rules set out in the notice of competition that the degree obtained should give access to doctoral studies, and also in view of the information, provided in the Guide for candidates, that the Czech "bakalár" degree should be of a duration of at least four years. The complainant did not provide the Selection Board by the closing date for applications with information to show that her qualifications gave access to doctoral studies in the Czech Republic. In this context, EPSO recalled the established case-law according to which it is the responsibility of the complainant to provide the Selection Board with all the information it considers necessary to examine the application.

EPSO also pointed out, in summary, that, since the Member States should determine whether the level of degrees gives access to doctoral studies, the Selection Board took into account general information provided by the Czech authorities in order to decide about the complainant's application.

1.3 The Ombudsman proposed a friendly solution to the complaint, for the reasons explained above. The proposal included the information that the complainant understood that it was no longer possible for her to participate in the competition.

1.4 EPSO rejected the friendly solution proposal. It pointed out that an authority that agreed to a friendly solution must have the power to implement (or have implemented) the measures that such solution involved and that EPSO has no authority to annul a decision taken by a Selection Board, nor could it legally give instructions to the Board. EPSO also insisted on the correctness of the decision to exclude the complainant.

1.5 The Ombudsman then gave EPSO the opportunity to clarify its position. He emphasised that recognition that the Selection Board was in error when it reached the conclusion that the complainant’s qualifications did not give her access to doctoral studies would not necessarily imply that the Selection Board should be criticised. Nor would it imply any legal liability towards the complainant.

1.6 The Ombudsman welcomes the fact that EPSO stated in its reply that, had any errors been committed, EPSO would apologise to the complainant on its own behalf and on behalf of the Selection Board.

The Ombudsman notes, however, that EPSO appears to feel unable to acknowledge that any error occurred in the present case, since to do so would imply that the appointing authority would be bound by an illegal decision adopted by a Selection Board, while it is obliged to take decisions which are free of irregularities.

1.7 In the light of EPSO’s position, the Ombudsman has carefully reviewed the information available in his file on the case and retains the following:

(i) The complainant applied for the competition on the basis of her two degrees: a three-year bachelor's degree and a one-year master’s degree;

(ii) The complainant was excluded on the ground that she did not fulfil the condition that a candidate must have an academic degree that gives access to doctoral studies;

(iii) The Guide for candidates appears to foresee several possibilities in the case of Czech degrees including a "bakalár" degree of four years duration, or equivalent(7);

(iv) On the basis of her two degrees, the complainant was, in fact, admitted to doctoral studies in the Czech Republic.

In light of the above, the Ombudsman takes the view that the complainant is entitled to an apology for the fact her qualifications were assessed as not giving her access to doctoral studies.

Since EPSO has declined on two occasions to offer such an apology, the Ombudsman will do so on behalf of the European Communities.

1.8 The Ombudsman apologises to the complainant on behalf of the European Communities for the fact that her qualifications were assessed as not giving her access to doctoral studies.

1.9 The above apology does not imply that the Selection Board should be criticised. Nor does it imply any legal liability towards the complainant. The Ombudsman considers that no further inquiries are necessary with regard to this aspect of the complaint.

2 The complainant’s claim

2.1 The complainant originally claimed that EPSO should reconsider her degrees and admit her to the competition.

2.2 In telephone communications with the Ombudsman’s services on 20 June and 27 September 2005, the complainant stated that she understood that it was no longer possible for her to participate in the competition in question, given that the procedures had been completed. However, she stated that she would be interested in participating in a future competition in the same field and in being informed of the timing of the next such competition. The Ombudsman informed EPSO accordingly in his proposal for a friendly solution.

2.3 The Ombudsman notes that EPSO informed the Ombudsman and the complainant in its reply to the proposal for a friendly solution that (1) EPSO's programme of competitions is published on its website and that, (2) in particular, the complainant could apply for the competition for AD5 administrators, which would be published in the first half of 2006.

2.4 In these circumstances, the Ombudsman considers that EPSO has taken adequate steps in response to the complainant’s claim, as modified, and that no further inquiries are therefore necessary with regard to this aspect of the complaint.

3 Conclusion

For the reasons stated above, the Ombudsman considers that no further inquiries are necessary. The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) EPSO’s opinion here and elsewhere uses the word 'diploma'. The Ombudsman understands EPSO to refer to what in English is normally called a 'degree'.

(2) See case T-54/91 Antunes v. European Parliament (1992)II-01739, par. 39, and T-249/01 Boixader Rivas v European Parliament (2003) II-00749, paragraph 29.

(3) The Ombudsman’s friendly solution proposal erroneously contained the date 24 July 2004.

(4) The Ombudsman assumes that EPSO is referring to the complainant’s letter of 20 July 2004.

(5) See Joined Cases T-219/02 and T-337/02 Herrera v Commission, judgement of 28 October 2004, not yet reported, paragraph 101 and the Order of the President of the Court of First Instance in Case T-193/04 R Tillack v Commission, order of 15 October 2004, not yet reported, paragraph 60.

(6) See Article 12.3 of the European Code of Good Administrative Behaviour, available on the Ombudsman's website: http://www.ombudsman.europa.eu.

(7) "Ceska Republika Bakalár (4 roky) Magistr/Inzenyr Nebo ekvivalentni"