The background to the complaint

1. The present case concerns the allegedly discriminatory character of the requirements concerning professional experience and linguistic knowledge in Open Competition EPSO/AD/229/11 ("the competition")[1], organised by the European Personnel Selection Office (EPSO).

2. The complainant is a Czech citizen who was interested in taking part in the competition, which aimed at establishing a reserve pool for administrators in the field of cooperation and management of aid to non-member countries.

3. On 20 September 2011, before the expiry of the deadline for applying to the competition, the complainant contacted EPSO via the dedicated online contact form, arguing that the eligibility criteria on professional experience and the selection criteria on linguistic knowledge published in the relevant notice of competition were contradictory and discriminatory. The complainant announced her intention to send shortly a more detailed complaint by ordinary mail, which she did on 21 September 2011. EPSO acknowledged receipt of the complainant's electronic message and informed her that it would reply to her on the basis of her detailed complaint. However, no reply was sent.

4. On 18 October 2011, the deadline for applying for the competition expired. On that same day, the complainant lodged a complaint with the European Ombudsman.

The subject matter of the inquiry

5. The Ombudsman opened an inquiry into the following allegations and claims:

Allegations

1. The eligibility criteria on professional experience for the competition are contradictory, unreasonable and discriminatory.

Supporting arguments:

i) The requirement to have acquired four out of the requisite six years of professional experience as a result of working on a project or programme does not match the job description according to which the recruited officials will also be expected to work at policy level or in monitoring and evaluation.

ii) The requirement to have acquired four out of the requisite six years of professional experience by working on a project or programme in a developing country does not take into consideration the experience acquired at the international level or in transition countries.

iii) The requirement to have acquired four out of the requisite six years of professional experience by working on a project or programme in a developing country also discriminates against citizens from EU-12 countries since these countries had very limited development assistance programmes before their accession to the EU in 2004/2007 and therefore offered very few opportunities to their nationals to gain the required experience.

2. The selection criteria concerning linguistic knowledge for the competition are contradictory, unreasonable and discriminatory in so far as they do not take into consideration knowledge of the languages of several partner countries, such as Russian, Swahili and Arabic.

Claims

1. EPSO should re-open the competition.

2. EPSO should amend the notice of competition so to remove the above-mentioned contradictions/discriminations.

The inquiry

6. On 30 November 2011, the Ombudsman requested EPSO to submit an opinion on the complainant's allegations and claims. EPSO's opinion was forwarded to the complainant with an invitation to make observations, which the complainant sent on 23 April 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

7. The Ombudsman notes that the issue of EPSO's failure to reply to the complainant's message (see paragraph 3 above) was not included in the complainant's allegations as understood by the Ombudsman.

8. However, both EPSO and the complainant addressed this issue during the inquiry. In its opinion, EPSO pointed out that it acknowledged receipt of the complainant's electronic message via the EPSO website and informed her that it would respond on the basis of her detailed complaint, which, however, it did not receive. EPSO nonetheless apologised for the inconvenience. Along with her observations, the complainant submitted a postal receipt evidencing that she sent a letter to EPSO on 21 September 2011. Given that EPSO has apologised for the inconvenience and that, in its opinion, it commented on the substance of the complainant's detailed complaint, the Ombudsman considers that there is no need for him to take up this aspect in his inquiry.

9. The Ombudsman also recalls that, according to well-established case-law of the Court of Justice of the European Union, the appointing authority has wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria, and, more generally, in the interest of the service, the conditions and procedure for organising a competition[2]. The review of the EU judicature on the exercise of this discretion is limited to ascertaining whether the authority concerned has exercised it in a manifestly erroneous manner or in a manner that is not in conformity with the objective of Article 27(1) of the Staff Regulations[3]. The Ombudsman underlines that the same standard of review applies also to his inquiries.

A. Allegation that the eligibility criteria on professional experience are contradictory, unreasonable and discriminatory

Arguments presented to the Ombudsman

10. In her complaint to the Ombudsman, the complainant alleged that the eligibility criteria on professional experience for the competition were contradictory, unreasonable and discriminatory. In support of her allegation, the complainant put forward a number of arguments that are summarised in paragraph 5 above.

11. In his letter opening his inquiry, the Ombudsman asked EPSO to address two specific issues, namely, (i) to explain whether, when assessing the required professional experience, EPSO took into consideration the fact that certain official EU documents[4] state that experience gained in transition countries was an asset to the EU's development policy and (ii) to explain why EPSO decided that knowledge of the languages of several partner countries should not be taken into account.

12. In its opinion, EPSO pointed out that, for legitimate reasons linked to the proper functioning of the service, institutions enjoy wide discretion in defining the content of the notice of competition, and in particular eligibility criteria.

13. As regards the specific supporting arguments put forward by the complainant, EPSO stressed that: (i) the eligibility criteria adopted in the notice of competition clearly matched the description of the duties for the post at stake, and specifically indents 3, 4, 6 and 8 of the description of the duties; (ii) the notice did not expressly exclude the relevance of experience acquired at the international level or in transition countries but left it to the Selection Board to assess the relevance of such experience; and (iii) the fact that certain Member States might have had more development assistance programmes than others and that the eligibility criterion was formulated as it was did not entail any difference in treatment between candidates. As a matter of fact, all candidates having the same professional experience were treated in the same way with regard to their participation in the competition.

14. In response to the Ombudsman's request that it explain whether it took into consideration the fact that certain official EU documents have declared that the experience gained in transition countries was an asset to the EU's development policy, EPSO pointed out that the assessment of the required professional experience fell within the competence of the Selection Board, which was still in the process of performing its duties. As a consequence, EPSO pointed out that it could not comment on that point. EPSO also stressed that the content of notices of competition is entirely defined by the institution requesting the organisation of a competition and that EPSO's responsibility is therefore limited to the publication of the notice.

15. In her observations, the complainant accepted EPSO's argument and agreed that the definition of eligibility and selection criteria, in the present case, was the responsibility of the European Commission. She therefore asked the Ombudsman to extend his inquiry to the conduct of the Commission and to ask the Commission to submit an opinion on her allegations and claims.

16. The complainant also stressed that the eligibility criteria should correspond to the job description contained in the notice of competition. However, in its opinion, EPSO itself pointed out that the eligibility criteria matched only some, and not all, of the tasks enumerated in the description of the duties. Moreover, the same tasks could effectively be performed by candidates with professional experience that was different from that required, for instance, experience in an international organisation dealing with development issues. The complainant further pointed out that EPSO asserted that the eligibility and selection criteria closely fit the requirements of the posts to be filled, but then failed to provide arguments in support of its assertion. Finally, the complainant stressed that EPSO refused to answer the Ombudsman's question as to whether it had taken into account the relevance of experience gained in countries in transition. According to the complainant, the failure to mention experience in countries in transition among the eligibility criteria resulted in discrimination against citizens of new EU Member States because those states had very limited experience in development assistance before their accession to the EU. The complainant pointed out that this situation resulted in inequality with respect to the possibility of having access to the competition, regardless of whether EPSO treated candidates admitted to the selection process equally.

The Ombudsman's assessment

17. For the purposes of his assessment, the Ombudsman considers it useful to recall the relevant provisions of the notice for competition EPSO/AD/229/11, which describe the profile sought and the eligibility criteria:

"1. Duties

The officials recruited will be expected to perform tasks in the field of development cooperation such as those described below:

- helping to formulate development policies, including sector policies, and conducting policy dialogues with relevant partners and stakeholders,

- participating in the identification and formulation of development cooperation projects and programmes, including preparation of financing proposals and agreements,

- operational management of development cooperation projects and programmes, including drafting terms of reference, tendering, contracting and supervision of implementation of contracts, including approval of reports payments and closure of contracts,

- operational management of budget support programmes (general and sector) for development cooperation,

- monitoring and evaluating development cooperation projects and programmes,

- liaising with all the relevant actors in the field of development cooperation, such as government counterparts, international and regional organisations, Member States and civil society,

- leading a small team of co-workers,

- work on development cooperation in an operational section in an EU Delegation.

[...]

3. Professional experience

Minimum 6 years' professional experience in the field of development cooperation in one or more of the following sectors: macroeconomics, public finance management, public sector reform, private sector, trade, regional integration, environment and natural resources, climate change, energy, infrastructure, transport, water, rural development, food security, disaster risk reduction, agriculture, forestry, fisheries, governance, human rights, elections, parliament, judiciary, health, education, social cohesion, gender, children, indigenous peoples, decentralisation and local authorities.

At least 4 of the 6 years' experience must have been gained by working on a project or programme in a developing country, including 2 years as team leader.

[...]"

18. The Ombudsman deems it appropriate to consider the complainant's first and third supporting arguments first. In her first supporting argument, the complainant submits that the requirement to have acquired four out of the requisite six years of professional experience by working on a project or programme does not match the job description of the notice of competition, and specifically the duties described in indent 1, 2 and 5 of point 1 of the notice of competition. In its opinion, EPSO disagreed with the complainant and argued that the eligibility criteria matched the description of the duties, and notably those described in indents 3, 4, 6 and 8 of point 1.

19. The Ombudsman points out that the institutions enjoy a wide margin of discretion in defining the eligibility criteria for a competition in relation to the duties of the posts to be filled. In the present case, the Ombudsman notes that the first paragraph of point 3 of the notice (professional experience) sets out the general requirement of six years of professional experience in the field of development cooperation. This clause therefore appears to cover all relevant duties. Consequently, the Ombudsman cannot agree with the complainant's view that experience acquired in fields which are relevant for other duties contained in the job description (e.g., policymaking or monitoring and evaluation) is not taken into account.

20. In her third supporting argument, the complainant submits that the requirement of having acquired four out of the requisite six years of professional experience by working on a project or programme in a developing country would discriminate against citizens coming from EU countries that had very limited development assistance programmes before their accession to the EU. EPSO rejected the complainant's argument and pointed out that this requirement did not entail any difference in treatment between candidates who are citizens of different Member States.

21. The Ombudsman understands the complainant's position to be that she considers the professional experience requirement in question to amount to indirect discrimination on the ground of nationality. While it may be true that national development cooperation programmes offer important opportunities for acquiring experience in the field, they are not the only way of doing so. Such experience could also be acquired in international organisations (e.g., the UN system) or with civil society organisations. The Ombudsman therefore considers EPSO's position to be reasonable.

22. In her second supporting argument, the complainant submits that the requirement that four out of the requisite six years of professional experience had to be spent working on a project or programme in a developing country does not take into consideration the experience that candidates could have acquired working at the international level or in transition countries. According to the complainant, this would be unreasonable and contradictory since (i) the same tasks could effectively be performed by candidates with experience in the excluded fields and (ii) EPSO failed to take into consideration the importance a number of official EU documents attached to experience gained in transition countries for the EU's development policy.

23. The Ombudsman notes that, in reply to the above argument, EPSO stressed that it falls within the Selection Board's competence to assess the actual relevance of a candidate's professional experience. EPSO added that, as a consequence, it was not in a position to express any views as to whether the experience gained at the international level or in countries in transition could be relevant. It subsequently informed the Ombudsman that, for the same reasons, it was unable to answer the Ombudsman's question on whether it took into consideration the fact that certain official EU documents had recognised the relevance of experience gained in countries in transition for the EU's development policy.

24. The Ombudsman very much regrets the position which EPSO adopted in this case. Although the Selection Board has a wide margin of discretion in deciding what kind of professional experience is to be considered relevant in a given competition, it remains bound by the notice of competition. In the present case, the notice of competition stipulates that at least four of the six years experience that candidates needed had to be gained by working on a project or programme "in a developing country". At first sight, it is difficult to see how this term could also cover transition countries.

25. It is true that EPSO stressed that the content of the relevant notice of competition had been entirely defined by the Commission. The fact remains, however, that the relevant notice of competition was issued by EPSO, not the Commission. A candidate is therefore entitled to hold EPSO responsible for this notice of competition. Furthermore, EPSO did not take the view that the Ombudsman should direct his inquiry towards the Commission. In fact, it addressed some of the issues raised by the complainant. The Ombudsman therefore considers that, if the answer to certain other issues needed input from the Commission, EPSO could have consulted the latter before providing its opinion on the present case. In any event, EPSO's lack of cooperation in the present case is deplorable.

26. Given that EPSO felt unable to address the Ombudsman's questions in relation to the complainant's second supporting argument, the Ombudsman is unable to ascertain whether professional experience acquired in working at the international level or in transition countries could be relevant for satisfying the eligibility criteria for the competition. As a consequence, the Ombudsman is not able to reach a conclusion at this time on whether, as alleged by the complainant, such eligibility criteria are contradictory, unreasonable and discriminatory.

27. The Ombudsman notes, however, that the complainant accepted EPSO's argument that the relevant notice of competition, and thus the definition of the eligibility and selection criteria, was the responsibility of the Commission and that she asked the Ombudsman to extend his inquiry to the conduct of the Commission.

28. The Ombudsman therefore considers that the best way forward is to close the present inquiry and to open an own-initiative inquiry concerning the Commission with respect to the issue of whether the requirement to have acquired four out of the requisite six years of professional experience by working on a project or programme in a developing country is contradictory, unreasonable or discriminatory, since it does not take into consideration the experience acquired at the international level or in transition countries.

29. The Ombudsman stresses that the opening of an own-initiative inquiry concerning the Commission does not mean that he accepts that EPSO does not bear any responsibility for the way the present notice of competition was drafted. He therefore reserves the right to return to this issue in light of the outcome of the own-initiative inquiry.

B. Allegation that the selection criteria on linguistic knowledge are contradictory, unreasonable and discriminatory

Arguments presented to the Ombudsman

30. In her complaint to the Ombudsman, the complainant alleged that the selection criteria concerning linguistic knowledge for the competition were contradictory, unreasonable and discriminatory in so far as they did not take into consideration knowledge of the languages of several partner countries of the EU, such as Russian, Swahili and Arabic.

31. In its opinion, EPSO pointed out that the linguistic knowledge criteria the complainant referred to were selection and not eligibility criteria. EPSO referred to the case-law of the EU courts regarding the wide discretion that appointing authorities enjoy in deciding upon the criteria of ability required for the posts that are to be filled and in determining, in light of those criteria and in the interest of the service, the rules and conditions under which a competition is organised. As regards the case at hand, EPSO underlined that there was nothing contradictory or unreasonable in the linguistic criteria adopted in the notice of competition since they represented an actual asset for the post to be filled and reflected the requesting institution's need to fill certain posts within its services. Moreover, there was no discrimination since all candidates were assessed according to the same standards.

32. In her observations, the complainant reasserted her view that the selection criteria on linguistic knowledge in the notice of competition resulted in a direct and unfair advantage directly linked to the nationality of the candidate.

The Ombudsman's assessment

33. For the purposes of his assessment, Ombudsman considers it useful to recall the provisions of the notice for competition EPSO/AD/229/11 which describe the selection criteria on linguistic knowledge:

"4. Selection criteria

For the selection based on qualifications, the following criteria will be taken into consideration by the selection board:

1. Knowledge of one or more of the following languages (this can include your main and/or second language): English, French, Portuguese or Spanish (minimum level required: B2 of Common European Framework of Reference for Languages (CEF)).

[...]"

34. The complainant pointed out that the languages of several EU partner countries are not included among those relevant for the competition and alleged that such exclusion is contradictory or unreasonable. The Ombudsman stresses that the choice of which languages are relevant falls within the wide margin of discretion of the appointing authority and that, according to EPSO, the choice reflects the requesting institution's need to fill certain posts within its services.

35. The Ombudsman considers that the appointing authority's decision to limit the number of languages on which candidates are selected does not appear to be manifestly erroneous or unreasonable, since the selected languages appear to correspond to the description of duties for the posts to be filled. As regards the alleged discriminatory character of the linguistic knowledge criteria, the Ombudsman considers that, even if there were a difference in treatment of candidates according to their knowledge of certain languages, such difference would appear to be objectively justified.

36. Given that the complainant's second allegation cannot be sustained, her claims cannot succeed, in so far as that allegation is concerned.

C. Conclusion

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

There are no grounds for further inquiries into the case.

The complainant and EPSO will be informed of this decision.

The Commission will also be informed of this decision as part of the own-initiative inquiry mentioned in paragraph 28.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 4 April 2013

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[1] OJ 2011 C 271A, p.19.

[2] See, inter alia, Case F-99/08 Rita di Prospero v Commission, judgment of 17 November 2009, not reported; Case C-16/07 P Chetcuti v Commission [2008] ECR I-7469; Case T-256/01 Pyres v. Commission [2005] ECR-SC I-A-23 and II-99, paragraph 36; Case T-420/04 Blackler v Parliament [2006] ECR-SC I-A-2-185 and II-943, paragraph 45; Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31, paragraph 66 and the case-law cited there.

[3] See Case C-16/07 Chetcuti v Commission [2008] ECR I-7469. According to Article 27, paragraph 1 of the Staff Regulations, "recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities".

[4] See, in particular, the European Parliament resolution of 13 March 2008 on the Challenge of EU Development Cooperation Policy for the New Member States (2007/2140(INI)) OJ 2009 C 66E, p.38 (the Parliament's Resolution) and Council Conclusions of 18 November 2009 on an Operational Framework on Aid Effectiveness (15912/09) (the Council Conclusions).