The background to the complaint

1. This case concerns the refusal of EPSO to allow the complainant to participate in staff selection competitions organised by EPSO in 2013[1]. The competitions were organised after the Commission lost its appeal before the General Court in the Pachtitis case[2].

2. The complainant participated, in 2010, in Open Competition EPSO/AD/177/10 aimed at constituting a reserve list to recruit administrators. He obtained one of the highest scores in the first stage of the competition, namely, the computer-based tests (CBTs). He did not succeed in the assessment centre stage and was thus not placed on the reserve list.

3. Following the judgment of the General Court in Commission v Pachtitis[3], EPSO informed individuals who were unsuccessful in the CBTs of all the relevant 2010 open competitions that they would have the opportunity to resit the tests in 2013, when EPSO would replace its normal cycle of general competitions with competitions aimed only at candidates who were eliminated during the first stage of competitions EPSO/AD/177/10, EPSO/AD/178/10, and EPSO/AD/179/10. EPSO informed the relevant candidates that the institutions intended to ensure that their chances of success would be broadly the same as in the original selection procedures.

4. This decision was published on EPSO's website on 9 March 2012. Candidates who were unsuccessful in the preselection phase of the relevant competitions also received a message via their EPSO account. Since he was one of the successful candidates in the pre-selection tests, the complainant did not receive any information about the new exams. However, he became aware of the new exams shortly afterwards via his Ministry of Foreign Affairs. The Ministry asked EPSO why the most competent candidates were excluded from the new competition. According to the complainant, EPSO replied that a re-admission of the most competent candidates would breach the principle of equal treatment. It would constitute an unjustified privilege, it said, if someone had the chance to be admitted to the next phase of the competition for a second time.

5. The complainant asked EPSO, on 19 April 2012, to be invited to the new competition. EPSO told him, on 26 April, that he would not be invited. The complainant replied, arguing that, while EPSO had committed itself to inviting certain candidates, nothing prevented it from also inviting candidates like himself. EPSO had not, he argued, in any way justified its decision to invite only those candidates who had actually done worst in the 2010 competition. On 10 May, EPSO informed the complainant that its decision was final. The complainant then turned to the European Ombudsman.

The subject matter of the inquiry

6. The complainant alleged that EPSO 's policy to limit the right to participate in the competitions, organised to give effect to the Pachtitis judgment, to those candidates who failed the CBTs, is wrong.

7. The complainant claimed that EPSO should also allow candidates who succeeded in the CBTs to participate in the competitions, organised to give effect to the Pachtitis judgment.

The inquiry

8. The complaint was submitted to the Ombudsman on 1 October 2012. By letter dated 13 November 2012, the Ombudsman asked EPSO to submit an opinion in this case and to reply to the following two questions:

1) Does EPSO consider that inviting candidates, who succeeded in the CBTs in the relevant open competitions in 2010, to take part in the AD competitions organised to give effect to the Pachtitis judgment would infringe any legal rule or principle? If so, please specify.

2 ) If EPSO considers that it would not be illegal to invite candidates who succeeded in the CBTs to take part in the AD competitions organised to give effect to the ruling of the Civil Service Tribunal in case F-35/08 Pachtitis v Commission, could EPSO explain the reasons for choosing to limit participation to candidates who were unsuccessful?

9. EPSO sent the Ombudsman its opinion in this case on 26 March 2013, while the complaint submitted observations on EPSO's opinion on 11 April 2013.

The Ombudsman's analysis and conclusions

A. Allegation that EPSO's policy to limit the right to participate in certain AD competitions is wrong and the related claim

Arguments presented to the Ombudsman

10. The complainant contested the fact that those participants of competition EPSO/AD/177/10 who obtained the highest scores in the pre-selection tests were not going to be admitted to the 2013 competition. He pointed out that the Guide to Open Competitions accompanying competition EPSO/AD/177/10 stated that the organisation of competitive examinations "guarantees selection based on merit, while observing the principle of equal treatment" (emphasis added by the complainant). Moreover, EPSO stresses in its "Development Plan" that the admission tests at the initial phase of the testing process are competence based, ensuring that only the most competent candidates are admitted to the next phase (emphasis added by the complainant). By excluding the most competent candidates from the new competition, EPSO privileged the less competent candidates, thus ignoring the principles of merit-based selection and equal treatment. In the complainant's view, it makes no sense to exclude the most competent 992 (out of 51,639) candidates from the new competition and is a waste of taxpayers' money.

11. In its opinion, EPSO argued that the 2013 AD competitions referred to by the complainant were not being organised to give effect to the Pachtitis judgment. Rather, they were organised to give effect to a unilateral commitment made by the EU institutions to pre-empt appeals on the same grounds as those upheld in that judgment.

12. EPSO explained that, following the annulment ruling in Pachtitis, EPSO's only obligation, in the strict legal sense, was towards the applicant himself[4] as he was the only person directly affected. EPSO implemented the judgment in his regard by inviting him to sit new pre-selection tests, this time organised with the involvement of the Selection Board of competition EPSO/AD/77/06.

13. As for the consequences of the Pachtitis ruling for the other candidates in competition EPSO/AD/77/06, EPSO argued that the principle of legal certainty precluded that the position of the successful candidates be affected by the annulment[5]. Similarly, the annulment ruling could not be relied upon by unsuccessful candidates to reopen the appeal deadlines that had already expired[6]. The fact that the ground for annulment was a general point potentially applicable to all the candidates in competition EPSO/AD/77/06 was not liable to affect this conclusion, EPSO said.

14. According to EPSO, the situation was, however, different for those competitions that were ongoing when the Civil Service Tribunal rendered its judgment in case F-35/08 Pachitis v Commission. The exact same factual situation criticised by the Civil Service Tribunal in that case pertained in those competitions, namely, the pre-selection tests were conducted under the sole responsibility of EPSO, without the involvement of the Selection Board. There were three such competitions: EPSO/AD/177/10 (the one in which the complainant took part), EPSO/AD/178/10, and EPSO/AD/179/10. Together, these competitions involved approximately 37 000 candidates. The pre-selection tests in these competitions had already been carried out when the judgment in case F-35/08 Pachitis v Commission was rendered, but the appeal deadlines for contesting results had not yet began to run. This meant that any candidate who was unsuccessful in a preselection test of one of these competitions could potentially lodge an appeal pleading the same grounds that gave rise to the Pachtitis annulment ruling, namely, an irregularity of procedure resulting from a lack of competence of the entity organising the tests.

15. It was in this context that the EU institutions, acting through their representatives on EPSO's Management Board, and following a positive opinion from the Commission's Legal Service, undertook, in the event that the Pachtitis judgment were to be confirmed on appeal, to organise new tests for all candidates excluded from competitions EPSO/AD/177/10, EPSO/AD/178/10, and EPSO/AD/179/10 on the basis of their results in the pre-selection tests. The purpose of this commitment was threefold: (i) to prevent complaints and appeals, potentially numbering in the thousands, from excluded candidates on the grounds upheld by the Civil Service Tribunal in the Pachtitis case, whilst fully protecting their interests in the event that the Commission's appeal to the General Court were to be rejected; (ii) to safeguard the interests of candidates admitted to the next stage of the three competitions, by maintaining the competition timetable; and (iii) to protect the interest of the service by providing the EU institutions with the appropriate number of successful candidates within the pre-established deadlines.

16. The aforementioned commitment was limited to candidates who were unsuccessful at the pre-selection stage of the three competitions in question, either because they had not obtained the minimum pass mark in one or more of the tests, or because they were not amongst the candidates who obtained one of the highest total scores and who could, therefore, be invited to the next stage of the competition. According to EPSO, this limitation follows logically from the first reason outlined above underpinning the commitment, which was to preserve the rights of those candidates who may have been prejudiced by a procedural irregularity affecting the pre-selection tests, and who, in consequence, would have had grounds to contest the results of those tests, on the grounds upheld in the Pachtitis case. Clearly, the only such candidates were those who were not successful at the pre-selection stage of the three competitions.

17. The nature of the institutions' commitment was such as to put these candidates, in the event of the Pachtitis ruling being confirmed on appeal, in the same position as they would have been in had they chosen to introduce a judicial appeal against the decision excluding them from the competition on the basis of their pre-selection test results. If they had chosen to introduce an appeal and succeeded, EPSO would have been obliged to invite them to participate in new pre-selection tests overseen by the Selection Board, just as it had to do in the case of Mr Pachtitis. The aim of the commitment was thus to replicate the effects of a successful appeal, without there being a need for the candidates concerned to introduce an appeal.

18. By way of contrast, candidates who succeeded in the pre-selection tests and who were therefore admitted to the next stage of their respective competitions did not suffer any prejudice as a result of the manner in which the pre-selection tests were organised. They had, therefore, no grounds to contest the outcome of those tests by relying on allegations of a procedural irregularity[7].

19. The factual and legal situation of these two candidate populations was thus clearly different, said EPSO. With regard to this difference, and considering, in particular, the objective pursued by launching the new pre-selection tests, allowing candidates in the second category to participate in the new tests would not have been compatible with the principle of equal treatment.

20. In his observations, the complainant insisted that the only two legal solutions in this case are: (i) to ensure that the thresholds in the original competition are maintained for the new competitions[8], or (ii) to admit all candidates of the original competition to the re-run. With regard to (i), the complainant disputed EPSO's claim that the intention is to put candidates "in the same position they would have been in had they chosen to introduce a judicial appeal against the decision excluding them from the competition on the basis of their preselection test results". As EPSO itself stated, had these candidates introduced a successful appeal, EPSO would have been obliged to invite them to participate in new pre-selection tests overseen by the Selection Board, just as it had to do in the case of Mr Pachtitis. However, EPSO's plan is to organise an entirely new competition, only for candidates unsuccessful in the original competition, offering exactly the same number of places on the reserve list, whilst alleviating the competition requirements[9]. With regard to (ii), excluding the more competent candidates is clearly incompatible with the principle of equal treatment, as it privileges the less competent candidates. As already argued by the complainant, it also fails to guarantee selection based on merit and, by not providing the EU institutions with the best available candidates, it is, in the long-term, a waste of taxpayers' money.

21. The complainant further questioned the authority of EPSO's Management Board to exclude candidates from participating in the 2013 competitions. He pointed out that, according to the Staff Regulations, admission to the tests is solely the responsibility of the Selection Board.

The Ombudsman's assessment

22. The Ombudsman recalls that the EU institutions, acting through their representatives on EPSO's Management Board, gave an undertaking to all candidates who failed the CBTs in competitions EPSO/AD/177/10, EPSO/AD/178/10 and EPSO/AD/179/10, and who as a result were excluded from those competitions, that they would be given an opportunity to resit those tests in the event the General Court confirmed the Civil Service Tribunal's ruling in Pachtitis. After the General Court confirmed the ruling of the Civil Service Tribunal, EPSO informed those individuals who were unsuccessful in the CBTs of the aforementioned open competitions that they would have the opportunity to resit the tests in 2013, when EPSO would replace its normal cycle of general competitions with competitions aimed only at candidates who were eliminated during the first stage of the aforementioned competitions. EPSO informed the relevant candidates that the institutions intended to ensure that their chances of success would be broadly the same as in the original selection procedures.

23. The Ombudsman notes that the above commitment, and EPSO's fulfilment of that commitment, was instrumental in safeguarding the fundamental right of access to justice of the unsuccessful candidates. Had EPSO failed to live up to its promise to these unsuccessful candidates, these candidates would have been wrongly induced to forego the possibility of appealing the decisions excluding them from the competitions. As such, EPSO's decision to allow these candidates to resit the CBTs after the General Court's ruling in Pachtitis was legally and ethically correct.

24. Principles of good administration go further than the law, however. They require more of the EU institutions than merely respecting their legal obligations. The Ombudsman recalls, in particular, that it is good administration, when faced with various legal options, to justify why the option chosen is the most appropriate. The justification of the option chosen could take various factors into account, such as, in the case at hand, the needs of the service to recruit staff of a high standard and the legitimate expectations of all candidates in the previous competition.

25. With regard to candidates (such as the complainant) who passed the CBTs when they were first organised, but who were eventually unsuccessful in the competitions after the assessment centre stage, the Ombudsman notes that the complainant argues that excluding the more competent candidates is incompatible with the principle of equal treatment, as it privileges lesser competent candidates. As a result, it also fails to guarantee selection based on merit.

26. The Ombudsman notes that the complainant has not put forward convincing evidence, according to which the system chosen by EPSO is incompatible with the principle of equal treatment, and the principle of staff selection based on merit. The Ombudsman has, in particular, not been presented with any evidence that EPSO's plan is, as suggested by the complainant, to organise an entirely new competition, only for candidates unsuccessful in the original competition, offering exactly the same number of places on the reserve list, whilst alleviating the competition requirements. The Ombudsman's understanding is that EPSO would have resumed the existing competitions (in the complainant's case, Open Competition EPSO/AD/177/10), which would imply that the maximum number of persons that could be placed on the reserve lists as a result of this competition has not been altered (these were: European public administration, 105; law, 43; economics, 39; audit, 64; and information and communication technology, 72). Assuming that the reserve lists for those competitions are already full[10], a candidate in the renewed competitions could not therefore be placed on a reserve list unless he or she was at least as competent as the lowest placed candidate already on a complete reserve list.

27. The Ombudsman further notes that, were EPSO also to admit candidates, such as the complainant, who were successful in the original CBTs to the resumed competition, it could be accused of unequal treatment in that those candidates have already sat the assessment centre stage of the competition and would therefore have an unfair advantage vis-à-vis those, unsuccessful, CBT candidates, who have not sat the assessment centre stage of the competition.

28. With regard to the complainant's questioning of the authority of EPSO's Management Board to exclude candidates from participating in the 2013 competitions, the Ombudsman's view is that these candidates were in fact excluded from the competitions in question by the relevant Selection Boards in that the latter deemed that these candidates failed the assessment centre stage of those competitions.

29. In view of the foregoing, the Ombudsman considers that there has been no maladministration.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration in the present case.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 20 September 2013

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[1] This case is very similar to complaint 1831/2012/RA.

[2] In case F-35/08 Pachitis v Commission, the Civil Service Tribunal found that, without an amendment to the Staff Regulations expressly conferring on EPSO the tasks previously assigned to the selection board, EPSO does not have the authority to carry out tasks which, in the case of recruitment of officials, affect the determination of the content of the tests and their correction, including tests comprising multiple-choice questions to assess verbal and numerical reasoning ability and/or general knowledge and knowledge of the European Union, even if those tests are presented as tests for "admission" of candidates to the competition's written and oral tests. The Tribunal thereby concluded that the applicant, Mr Pachtitis, was excluded from the second stage of the competition at issue by a procedure conducted by an authority lacking power to conduct the procedure. The Tribunal annulled the decision resulting from the procedure, namely, the decision not to admit Mr Pachtitis to the next stage of the competition. The Tribunal went on to say that the Commission must give due effect to the annulment by the Tribunal of the contested decisions and set aside any related measures, in so far as such setting aside is required by Article 266 TFEU (see paragraphs 70 and 73 of the judgment of the Civil Service Tribunal). Following the Commission's appeal in this case, the General Court confirmed that the Civil Service Tribunal did not err in law when it concluded that the candidate (Mr Pachtitis) had been excluded from the second stage of the competition by a procedure conducted by an authority lacking power (see paragraph 58 of the judgment of the General Court).

[3] See case T-361/10 P Commission v Pachitis, [2011] ECR II-8225. This judgment was rendered following an appeal by the Commission in relation to the judgment of the Civil Service Tribunal in case F-35/08 Pachitis v Commission, judgment of 15 June 2010, not yet published in the ECR.

[4] EPSO pointed out that the legal effects of a court judgment annulling a measure are limited to the subjects directly affected by the measure in question. See case 43-64, Müller v Council; joint cases 50, 51, 53, 54 & 57-64, Loebisch et al. v Council; case 46-64, Schoffer v Commission. In order to comply with the judgment, those subjects must be brought into a situation as if the annulled measure had never been adopted.

[5] EPSO referred to case C-90/95 P, Compte v Parliament.

[6] EPSO referred to case 15/73, Schots-Kortner and others v Council and others.

[7] EPSO referred to case C-9/76, Morello v Commission, paragraph 11 and case 124/75, Perinciolo v Council, paragraph 26.

[8] In his view, this will lead to a very low number of laureates, thus requiring EPSO to organize a general AD competition in 2013, as originally planned.

[9] The complainant referred to the Corrigendum to notice of open competition EPSO/AD/177/10 (2013/C 82 A/01), according to which there will be no situational judgment test, which was part of the original competition. Moreover, the case study is possibly not to take place on the same day as the Assessment Centre, which greatly eases the stress at the Assessment Centre, he said.

[10] The candidates that were placed on the reserve lists subsequent to the tests carried out when these competitions were originally organised remain on those reserve lists.