Strasbourg, 26 March 2007

Dear Mr L.,

On 29 November 2004, you submitted a complaint to the European Ombudsman against the European Parliament, concerning your proposed recruitment by the European Anti-Fraud Office, after the inclusion of your name on the list of suitable candidates of Open Competition PE/32/B.

On 8 December 2004, my services contacted you by telephone concerning your complaint.

By e-mail of 10 December 2004, you sent me further documents related to your complaint.

On 10 January 2005, I forwarded the complaint to the President of Parliament. Parliament sent its opinion on 13 April 2005. Given that Parliament's opinion only covered the first allegation raised in your complaint, on 4 May 2005, I asked the President of Parliament to submit, by 15 June 2005, an opinion on the second allegation of your complaint as well. On the same day, I forwarded Parliament's first opinion to you and informed you that I had asked the President of Parliament to submit an opinion on the second allegation of your complaint.

Parliament sent its opinion on the second allegation on 8 June 2005. On 16 June 2005, I forwarded it to you with an invitation to make observations. You sent your observations on 26 July 2005.

On 22 September 2005, and in view of your observations, I asked for further information from the European Anti-Fraud Office ("OLAF"). You were informed accordingly on the same day.

On the occasion of a telephone conversation on 28 October 2005 between OLAF’s services and my services, OLAF informed the Ombudsman that the issue raised in the Ombudsman’s request for further information came within the competence of the European Commission's Directorate-General for Personnel and Administration ("DG Personnel and Administration") and that OLAF could not provide detailed information on the relevant issue. OLAF’s services suggested that the Ombudsman’s letter should be forwarded to the Commission, which could send a detailed separate reply on this issue. My services considered that this approach appeared to be appropriate.

On 7 November 2005, OLAF informed me that it had forwarded a copy of my letter to the Commission and that the latter would send a separate reply.

On 22 December 2005, the Commission sent me its reply to my request for further information on your complaint. On 16 January 2006, I forwarded to you the Commission’s reply with an invitation to make observations before 28 February 2006. No observations were received from you by the date set for this purpose.

On 5 and 13 February 2007, my services contacted you by telephone as regards the issues raised in your complaint.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken me to complete the investigation of your complaint.

THE COMPLAINT

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

The complainant passed the tests in Open Competition PE/32/B, organised in 2002 by Parliament in order to constitute a reserve list of senior administrative assistants in the field of information and communications technologies.

On 12 March 2004, the complainant was informed by the Head of the Competitions Service of Parliament that his name had been included on the reserve list and that "inclusion made him eligible for appointment to a vacant post within one of the institutions of the European Union". The reserve list was due to expire at the end of December 2004.

On 30 March 2004, the complainant was invited for an interview for a post in OLAF. He underwent the medical examination and submitted the supporting documents for his recruitment by OLAF, foreseen for the beginning of May 2004. From this date, the recruitment procedure was stopped. In the complainant's view, Parliament decided to stop the procedure for his recruitment by OLAF for reasons related to quotas. The complainant pointed out that he had been informally informed that Parliament would no longer accept recruitment by other institutions of candidates whose names were on its own reserve lists. In the complainant's view, this was an unfair situation, given that, at the moment, there were no vacant posts to be filled in Parliament.

The complainant contacted Parliament by e-mail, on several occasions. On 11 October 2004, he telephoned Parliament's Directorate-General for Personnel in order to obtain information on vacant posts. The complainant was informed that his curriculum vitae had been sent to the relevant Parliament directorate-general. He further asked whether his recruitment had been stopped because of the existence of quotas. On the occasion of this telephone conversation, the complainant further requested information regarding the length of time in which the reserve list of the competition he had passed would be rated. According to the complainant, the person in charge of the reserve lists was unable to give him the information. The complainant pointed out that, in a letter dated 16 July 2004, Parliament had informed him that the length of the pertinent reserve list’s validity remained unchanged and that he would be informed in good time if it was to be extended.

In his complaint to the European Ombudsman, the complainant alleged that Parliament had unfairly decided to stop the procedure for his recruitment by OLAF. He further alleged that Parliament had failed to inform him in due time about the possible extension of the length of validity of the reserve list for Open Competition PE/32/B.

THE INQUIRY

Parliament's opinion

Parliament’s opinion on the complaint was, in summary, as follows:

The complainant passed the exams in Open C ompetition PE/32/B, organised by Parliament for the recruitment of Assistants in the field of information and communications technology. His name was thus included in the reserve list which was constituted on 27 February 2004.

Open Competition PE/32/B was organised by Parliament in order to meet its own needs as regards staff in this area. In accordance with the inter-institutional agreements on sharing of the reserve lists resulting from competitions, Parliament, in drawing up the reserve list, took account, in addition to its own needs, of the needs of the following institutions: the European Commission, the Council of the European Union, the European Court of Justice ("ECJ"), the European Committee of the Regions ("COR") and the European Economic and Social Committee ("EESC"). The number of laureates initially envisaged amounted to 120 and was divided as follows: 67 laureates for Parliament; 45 laureates for the Commission; 4 laureates for the EESC(1); 2 laureates for the ECJ; and 2 laureates for the EESC. However, the reserve list resulting from Open Competition PE/32/B comprised a list of 68 laureates, which was lower than the number of laureates initially envisaged. As a result, the number of laureates proportionally allocated to each institution concerned was lower than that initially foreseen.

As regards the complainant’s first allegation, the Commission was the institution responsible for staff management of several agencies and offices including OLAF. In accordance with the quota ,the Commission had communicated to Parliament a list of the laureates whom it was entitled and wished to recruit, that is, 37,5% of laureates corresponding to 25 laureates (instead of the 45 initially foreseen). The complainant's name was not included in this list of 25 laureates.

The complainant’s curriculum vitae was transmitted to the relevant Parliament’s services. He was then contacted several times for interviews in various Parliament services. When he was contacted on 23 March 2004, the complainant stated that he had applied for a post at OLAF. He was also contacted on 21 April 2004 and on 23 June 2004.

On 29 April 2004, the Commission invited the complainant to a medical examination. This could have misled the complainant with regard to the recruitment intentions of the Commission.

The complainant either declined Parliament's invitations for interviews by telephone, or asked for the job descriptions of the relevant posts in Brussels. The relevant job descriptions were sent to the complainant but he did not pursue Parliament's invitation for interviews. In accordance with the inter-institutional agreements on the use of the reserve lists resulting from competitions, Parliament followed up the requests for recruitment from the other institutions that showed interest in Open Competition PE/32/B. In Parliament’s view, the Commission never asked to recruit the complainant.

Parliament ignored the reasons why the preparations for the recruitment of the complainant by OLAF had not been followed up and was of the view that this issue fell within the exclusive competence of OLAF.

As regards the complainant’s second allegation, the notice of competition stated that the validity of the reserve list expired on 31 December 2004. By letter of 25 January 2005, Parliament informed the complainant that the validity of the reserve list had been extended until 31 December 2005. The complainant acknowledged receipt of Parliament’s letter on 9 February 2005.

The complainant's observations

In his observations dated 26 July 2005, the complainant referred to Parliament’s statements pursuant to which the Commission had never asked to recruit him and that only OLAF was responsible for the fact that his recruitment by the latter had not been followed up. The complainant asked whether it was possible to ask for comments by the Commission and OLAF as regards these two statements.

The complainant further stated that neither the notice of competition nor Parliament's letter informing him of the result of his application had contained any information about the quotas to which Parliament had referred in its opinion.

Further inquiries
The request for information addressed to OLAF

In view of Parliament's opinion and the complainant's observations, the Ombudsman considered it necessary to ask OLAF to provide information in order to enable him to deal with the complaint directed against Parliament. In accordance with Article 3(2) of his Statute, the Ombudsman therefore asked OLAF to provide him with information on the following point:

"In point 9 of its opinion on the complaint, Parliament stated that ‘[t]he European Parliament is not able to know the reasons why the preparations of the complainant recruitment's by OLAF had not been followed up, this question only being within the responsibility of OLAF’.

Could OLAF please provide the Ombudsman with information as to the reasons why it did not recruit the complainant?"

OLAF's letter of 7 November 2005

In his letter of 7 November 2005, the Director-General of OLAF informed the Ombudsman that, although he was the Appointing Authority for recruitment decisions concerning OLAF, the administrative handling of recruitment procedures for all services of the Commission came within the exclusive responsibility of the Commission's DG Personnel and Administration.

The Director-General of OLAF further informed the Ombudsman that he had therefore forwarded a copy of the Ombudsman’s letter to the Secretariat-General of the Commission, which would send a separate reply on the relevant issue(2).

The Commission’s reply of 22 December 2005

In its reply, the Commission stated that OLAF, while retaining its powers of Appointing Authority, called on the other services of the Commission, namely DG Personnel and Administration, to carry out the administrative handling of recruitment procedures concerning its staff.

In accordance with the administrative practice and the existing agreements between institutions, recruitment of candidates who had passed a competition organised by Parliament by an institution other than Parliament was possible, subject to certain quotas. In view of these circumstances, Parliament had granted to the Commission (including, for this purpose, OLAF ) a quota of 25 laureates from the reserve list resulting from Open Competition PE/32/B. Recruitment of candidates from this list by the Commission had to follow the "appointment and transfer" procedure, that is to say, an appointment to Parliament, followed by a transfer to the Commission, with the same date of effect.

In March 2004, as soon as the reserve list for Open Competition PE/32/B had been published , the Commission had, after consultation with its directorates-general and services, drawn up a list of 23 laureates whom it wished to recruit . The complainant's name was not on this list.

By note of 26 March 2004, OLAF had asked for, and subsequently obtained, the recruitment of a laureate other than the complainant.

By e-mail of 31 March 2004, OLAF had informed the Commission, in an informal way, that it planned to ask for the recruitment of a second laureate, namely the complainant. OLAF made a formal request to this effect by note of 6 April 2004.

On 8 April 2004, the Commission forwarded to Parliament the list of the 23 laureates whom it intended to recruit. Although OLAF’s request to recruit the complainant had already been sent to the Commission on 6 April 2004 , these two notes had crossed. This explained why the complainant’s name did not figure on the list sent to Parliament on 8 April 2004.

At this time, however, the complainant’s recruitment still appeared to be possible . According to the usual practice, the complainant was thus invited, on 16 April 2004, to undergo a medical examination, which was scheduled for 13 May 2004. The invitation letter clearly indicated that such an invitation could by no means "constitute, at the present stage of the procedure, a commitment of the Commission in his regard".

However, the Appointing Authority subsequently decided to allocate the two remaining drawing rights ("droits de tirage") to the Commission's Directorate-General for Information Technologies. As a consequence, the complainant’s recruitment to OLAF became impossible. The Commission therefore did not forward to Parliament any request for the recruitment of the complainant. The Commission informed OLAF accordingly but did not cancel the complainant’s medical examination.

The Commission acknowledged that it could have cancelled the invitation made to the complainant to undergo the medical examination and that it should have, on this occasion, informed the complainant that his recruitment to OLAF was no longer possible. This would have probably avoided any further misunderstandings. The Commission expressed its regret for these misunderstandings and apologised for them. However, it recalled that a candidate whose name had been put on a reserve list did not have an automatic right to be recruited . Furthermore, the Commission stressed that the Appointing Authority had never committed itself to recruit the complainant.

In November 2005, the Commission had been informed that Parliament intended to make more flexible the quota system applied during the first year of the establishment of the reserve list. If this information were to be confirmed, and on the double condition that Parliament decided not to recruit the complainant for its own services and that OLAF still had a need for and an interest in the recruitment of this candidate, the Commission could envisage asking for the appointment of the complainant by Parliament and for his transfer to OLAF.

The complainant's further observations

No further observations were received from the complainant by the date set for this purpose.

Telephone conversations between the Ombudsman’s services and the complainant

On 5 February 2007, the Ombudsman’s services contacted the complainant by telephone in order to check whether he had any observations to make. The complainant replied that he had no observations to make and informed the Ombudsman that he could close his inquiry. The complainant further informed the Ombudsman’s services that, following the re-publication of the job advertisement for the relevant post, he had again applied to OLAF and had been recruited by the latter.

On the occasion of a further telephone conversation on 13 February 2007, the complainant made it clear that, as regards his individual case, he considered that it could be closed. The Ombudsman’s services informed the complainant that the European Ombudsman would consider whether it was appropriate for him to open an own-initiative inquiry into the quota system to which both Parliament and the Commission had referred during the present inquiry. The complainant welcomed this information.

THE DECISION

1 The complainant’s allegations

1.1 In 2002, the European Parliament organised Open Competition PE/32/B in order to constitute a reserve list of senior administrative assistants in the field of information and communications technologies. The complainant succeeded in this competition and was informed, on 12 March 2004, that his name had been included in the reserve list, the validity of which, subject to a possible extension, was due to expire at the end of December 2004. He was further informed that the inclusion of his name in the reserve list meant that he was eligible for appointment to a vacant post within any of the EU institutions. The complainant thereupon applied for a job at the European Anti-Fraud Office ("OLAF"). On 30 March 2004, the complainant was invited for an interview by OLAF. He subsequently underwent the necessary medical examination. In his complaint to the European Ombudsman, the complainant alleged that Parliament had unfairly decided to stop the procedure for his recruitment by OLAF. He further alleged that Parliament had failed to inform him in due time about the possible extension of the length of validity of the reserve list for Open Competition PE/32/B.

1.2 In its opinion, Parliament pointed out that the European Commission had been entitled to a quota of 37.5% of the successful candidates (corresponding to 25 laureates) for recruitment in its services, including, for that purpose, OLAF. Parliament stated that it was not aware of the reasons why the preparations for the recruitment of the complainant by OLAF had not been followed up. In any event, this question came within the exclusive competence of OLAF. As regards the complainant’s second allegation, Parliament stated that it had informed the complainant by letter of 25 January 2005 that the validity of the reserve list had been extended until 31 December 2005.

1.3 In his observations, the complainant asked whether it was possible to ask for comments by the Commission and OLAF as regards Parliament’s statements. The complainant further stated that neither the notice of competition nor Parliament's letter informing him of the result of his application had contained any information about the quotas to which Parliament had referred in its opinion.

1.4 The Ombudsman thereupon asked OLAF to provide him with information as to the reasons why it did not recruit the complainant. Given that the administrative handling of recruitment procedures fell under the competence of the Commission, OLAF forwarded the Ombudsman’s letter to the Commission.

1.5 In its reply, the Commission informed the Ombudsman that, by note of 6 April 2004, OLAF had made a formal request to recruit the complainant. On 8 April 2004, the Commission forwarded to Parliament a list of 23 laureates whom it wished to recruit within the framework of its quota. The Commission explained that these two notes crossed and that this explained why the complainant’s name had not been included in the list of the first 23 laureates whom the Commission wished to recruit. The complainant was nevertheless invited, on 16 April 2004, to the medical examination. However, the Appointing Authority subsequently decided to use the two remaining drawing rights ("droits de tirage") in order to fill posts in another service. The complainant’s recruitment to OLAF therefore became impossible. The Commission acknowledged that it could have cancelled the invitation made to the complainant to undergo the medical examination and that it should have, on this occasion, informed the complainant that his recruitment to OLAF was no longer possible. This would have probably avoided any further misunderstandings. The Commission expressed its regret for these misunderstandings and presented its apologies to the complainant.

1.6 The Commission’s reply was forwarded to the complainant with an invitation to make observations. No observations were received from him by the date set for this purpose.

1.7 On 5 February 2007, the Ombudsman’s services contacted the complainant by telephone in order to check whether he had any observations to make. The complainant informed the Ombudsman’s services that he did not whish to make any observations and that the Ombudsman could close his inquiry. The complainant further informed the Ombudsman’s services that, following the re-publication of the relevant post, he had again applied to OLAF and had been recruited by the latter. On the occasion of a further telephone conversation between the Ombudsman’s services and the complainant on 13 February 2007, the complainant made it clear that, as regards his individual case, he considered the matter to be closed.

1.8 In view of these circumstances and in particular of the fact that the complainant was finally recruited by OLAF, the Ombudsman considers that there appear to be no grounds to pursue his inquiry into the complainant’s allegations against Parliament. The Ombudsman takes the view that the way in which the Commission handled the complainant's proposed recruitment to OLAF would have merited a closer examination. However, given that the complainant has made it clear that, as regards his individual case, he considers the matter to be closed, the Ombudsman considers that there are no grounds to open an inquiry against the Commission in order to do so.

1.9 The Ombudsman notes that both Parliament and the Commission have referred, in their submissions, to a quota system that appears to be used in recruiting candidates. In the Ombudsman's view, such a quota system raises a number of questions that would justify an examination. A further remark will be made below in this regard.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appear to be no grounds for further inquiries into the complaint. The Ombudsman therefore closes the case.

The President of Parliament will also be informed of this decision.

A copy of the present decision will also be sent to the Director-General of OLAF and to the President of the Commission for their information.

FURTHER REMARK

The Ombudsman notes that both Parliament and the Commission have referred, in their submissions, to a quota system that appears to be used in recruiting candidates. In the Ombudsman's view, such a quota system raises a number of questions that would justify an examination.

In these circumstances, the Ombudsman will consider whether this issue should be made the subject of an own-initiative inquiry.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman assumes that the reserve of 4 laureates was for the Council and not for the EESC, which is mentioned immediately afterwards and which was to receive 2 laureates, or for COR.

(2) The Ombudsman’s services were informally consulted before OLAF forwarded the Ombudsman’s letter to the Commission.