Dear Mr A.,
On 29 August 1996 you made a complaint to the European Ombudsman, firstly, concerning the European Parliament's Open Competition PE/78/A and, particularly, about the reassessment of your essay in section B.2.c of the written tests and, secondly, concerning the age limit set in the European Commission's Open Competition COM/A/956 and the possibility for a derogation from the age limit.
On 30 September 1996, I forwarded the complaint to the Presidents of the European Parliament and the European Commission. The Parliament sent its opinion on 20 November 1996 and the Commission on 17 December 1996. I forwarded those to you with an invitation to make observations, if you so wished. On 1 March 1996, I received your observations on the Parliament's and the Commission's opinion.
During the inquiry into your complaint the Ombudsman received a number of complaints from unsatisfied union citizens who complained about age limits. Therefore, on 14 July 1997, I decided to initiate an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions. On 4 November 1998, I completed my own initiative inquiry.
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 to deal with your complaint due to the need to initiate an own initiative inquiry into the use of age limits for recruitment to the Community institutions.

THE COMPLAINT

Firstly, the complainant complained about the European Parliament's Open Competition PE/78/A. The Selection Board informed the complainant that the mark awarded to him for section B.2.c. of the written tests was lower than 15, therefore he was not admitted to take part in the oral tests. In his letter of 4 March 1996, the complainant asked for his rejected essay to be reassessed because he himself felt that he had succeeded in this section of the competition. As the subject of the essay was of a very general nature and as it was a topic on which no consensus had yet been attained in the Member States, according to the complainant different views might well be taken on it. He wrote that the assessor's personal view of the matter might have differed to his own. That is why the complainant asked, whether another assessor could grade his essay.
By a letter of 22 April 1996, the Selection Board replied stating that the complainant had been concerned that a possible translation of his essay might have resulted in an inaccurate assessment. The letter also stated that the Board had at its meeting of 7 March 1996 considered the matter and concluded that as the test in question had been assessed by three Finnish-speaking assessors, the Board merely upheld its previous decision.
The complainant claimed that he had himself made no reference to the possibility of distortion in the translation of his essay. He claimed that the Board had, in fact, not treated his request for a reassessment in the manner he had asked but rather left it unexamined. According to him, the Selection Board had committed two administrative omissions. The reasoning of the Board was wrong as he had not been worried about the possible translation of his essay. In addition, the reassessment had not been done although according to the Official Journal (OJ C 148 A (IF) page 8) it was the duty of the Selection Board.
Furthermore, the complainant asked the Ombudsman to ascertain who the Finnish- speaking assessors were, how competent they were for the task at hand, and whether all three of them thoroughly and independently assessed the essays of all applicants.
Secondly, the complainant complained about the European Commission's Open Competition COM/A/956. The Notice of Competition (OJ C 258 A (IF) page 12) required that applicants must have been born after 17 November 1939. The complainant was born on 8 February 1939. According to the same Official Journal (page 7), applicants were required to enter a cross in box 17 on the machine-readable form if they wished to apply for a derogation from the age limit. The complainant had done that. On 17 April 1996, the DG IX of the Commission informed him that his application could not be considered because he had not been born after 8 December 1939(1). On 20 May 1996, the complainant complained about the decision to reject his application. On 17 June 1996, the Commission replied stating that the Selection Board could not admit the complainant to the competition on the grounds that he had not been born after the date set in the Notice of Competition. The complainant claimed that no consideration at all had been given to his request for a derogation from the age limit.
Finally, the complainant asked the Ombudsman to investigate the above events for general reasons and with a view to ascertaining whether errors in procedures relating to open competitions may arise because applications and requests submitted in Finnish have not been forwarded to the competent services within the Community institutions.

THE INQUIRY

The Parliament's opinion
In its opinion the Parliament stated in summary the following:

• All the tests were examined by the three assessors selected by the Selection Board from persons with appropriate qualifications and experience;
• These assessors fulfilled their tasks independently from one another and each of them gave a marking of all the applicants' tests;
• In case there were divergences between the markings given by the three assessors, a fourth assessor was asked to evaluate the test;
• As no divergence was found in the marking of the complainant's written tests, there was no need to ask for a fourth assessor to evaluate his test;
• Contrary to what the complainant alleged, the Selection Board is not obliged to answer all requests made by the candidates at this stage of the competition. The Selection Board cannot answer questions which concern decisions relating to the marking of tests, particularly when no error has occurred in the correction procedure;
• The work of a selection board is secret and therefore the question relating to the identity of the assessors could not be answered.

The Commission's opinion
In its opinion the Commission stated in summary the following:

• According to point III.B.1 in the Notice of Competition of Open Competition COM/A/956, candidates must be born after 17 November 1939 in order to fulfil one of the conditions for admission;
• In its notices of competitions at grades A3 and A4/A5 for candidates from the new Member States, the Commission has envisaged a possibility for derogation from the age limit as concerns A3 posts, but not for A4/A5 posts;
• In a corrigendum to the Official Journal the deadline for applications was postponed to 8 December 1995 and consequently this corrigendum stipulated that candidates must be born after 8 December 1939;
• The complainant was born on 8 February 1939 and therefore did not fulfil the special condition as concerns the age limit;
• The complainant had filled in the optical reader form, which accompanies the Commission's official applications forms in open competitions and facilitates the registration of candidates;
• Point 17 in the optical reader form concerned candidates who ask for a derogation from the age limit. Apparently, the complainant presumed that by filling in point 17 a derogation from the age limit could be obtained;
• However, no derogation from the age limit was envisaged in the Notice of Competition;
• The Selection Board found that the complainant did not meet the special conditions set in the Notice of Competition and therefore his application was rejected;
• The complainant complained about the Selection Board's decision, but the Board upheld its decision, since the complainant did not fulfil the special conditions.

The complainant's observations
The complainant maintained his complaint to the Ombudsman.
As regards the European Parliament's Open Competition PE/78/A, he pointed out that the statement of the Parliament according to which there had been no need to examine the complainant's test by a fourth assessor differs from its previous statement.
The complainant stressed that his intention was not to obtain for himself the information on the identity, competence and independence of the assessors, but that he merely raised the issue in case the Ombudsman considered it appropriate to obtain such information.
As to the European Commission's Open Competition COM/A/956, the complainant stated that the contents of the Selection Board's letter of 17 June 1996 were insufficient, as they did not include an explanation of why it was impossible to derogate from the age limit.

THE DECISION

1 The Selection Board's reasoning and the reassessment of an essay in Open Competition PE/78/A
1.1 In the context of competitions, decisions by a Selection Board to reject a candidate must state the conditions of the notice of competition which have not been fulfilled.(2) If there is a large number of candidates, the Selection Board may initially confine itself to stating the reasons for the refusal in a summary manner and informing the candidates only of the criteria and the result of the selection.(3) Nevertheless, the Selection Board must subsequently give an individual explanation to those candidates who expressly ask for it.(4)
1.2 In his letter of 4 March 1996, the complainant had expressly requested that the Selection Board reassess his essay in the written test B.2.c. in the Open Competition PE/78/A. The Selection Board replied on 22 April 1996 merely stating that it had considered the matter in its meeting of 7 March 1996. As the test in question had been marked in the original version by three Finnish-speaking assessors, the Board could only uphold its decision not to admit the complainant to the oral tests.
1.3 The reply by the Selection Board to the complainant did not contain sufficient details to enable the complainant to understand the factors on which the Board's decision in relation to him had been based, and to allow for a potential review of the grounds on which the decision had been taken. The reply failed therefore to give him adequate reasons for the rejection of his application.
2 Age limit and the possibility for a derogation from the age limit in Open Competition COM/A/956
2.1 In the Notice of Competition COM/A/956 the European Commission had set an age limit of 55 years. An optical reader form accompanied the Commission's official application form. According to point 17 of the optical reader form, candidates could ask for a derogation from the age limit by filling in this point. The complainant had crossed point 17 assuming that he could obtain a derogation from the age limit.
2.2 In its comments to the Ombudsman, the Commission stated that when it is envisaged that a derogation from an age limit is possible, it is mentioned in the Notice of Competition. However, in the Notice of Competition COM/A/956 no derogation from the age limit was envisaged.
2.3 The European Ombudsman is of the view that there was a lack of adequate reasoning on the part of the Commission for not allowing a derogation from the age limit set in Open Competition COM/A/956.
2.4 The Ombudsman found that it was particularly misleading for the complainant that the optical reader form gave a possiblity to apply for a derogation from the age limit, but the Notice of Competition did not envisage such a derogation.
3 Possible errors in the recruitment procedure due to the Finnish language used in Open Competitions PE/78/A and COM/A/956
3.1 The Ombudsman's inquiries have not revealed any evidence to indicate that errors in the recruitment procedure would have occurred due to the fact that Finnish was the language of Open Competitions PE/78/A and COM/A/956.
4 Own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the Community institutions
4.1 The Ombudsman's decision on 14 July 1997 to open an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions was motivated by a considerable number of complaints, including that of the complainant. On the basis of Article 138e of the Treaty Establishing the European Community, the Ombudsman is empowered to conduct an inquiry in relation to possible maladministration in the activities of Community institutions and bodies.
4.2 Before launching his own initiative inquiry the Ombudsman had a comparative research done about the use of age limits in the various Member States. This research indicated that, currently, there does not exist a common legal or constitutional principle either allowing or prohibiting age discrimination in the public sector. Member States apply an age limit which is in general higher than 35 years. However, a tendency towards prohibiting age limits as discriminatory was apparent in some Member States.
4.3 The Ombudsman's own initiative inquiry as well as his inquiries into individual complaints indicated that the age limits used by the Community institutions vary from 35, 40 and 45 to 55. The reasons for using them has been explained, for example, for balanced management in the career structure, geographical balance, good ratio between men and women employees, problems increasing with age in adapting to a multicultural and multilingual environment, possibility of mobility decreasing with age, unemployment of young people, and for the possibility of limiting the number of candidates.
4.4 As regards the human rights provisions on non-discrimination, the own initiative inquiry revealed that it cannot be excluded that the scope of application of the European Convention of Human Rights could also cover discrimination on the grounds of age in cases where there exists no objective and reasonable justification for such discrimination.
4.5 The Ombudsman found that age is to be regarded as a possible cause of discrimination. As regards the European Union, this has been particularly clarified by the Treaty of Amsterdam and, therefore, the need to combat age discrimination will only culminate by its entry into force.
4.6 Based on his own initiative inquiry the Ombudsman is of the view that each Union citizen should have the possibility to seek employment within the European Union administration. If it is considered appropriate to limit this possibility, this needs to be carried out with sufficient justification avoiding in the recruitment procedures any elements which might be considered discriminatory or arbitrary.
5 The legal basis for the use of age limits for the recruitment in the Community institutions
5.1 The Ombudsman understands that based on Article 1, paragraph 1 (g) of Annex III to the Staff Regulations, the European Parliament and other Community institutions may specify an age limit in notices of competition. However, the Ombudsman is of the view that the current practice within the Community institutions of setting various age limits with differing grounds and without sufficient justification can not be considered as correct application of age limits.
5.2 The Ombudsman's inquiries appear to indicate that the Community institutions could envisage the setting of one common age limit with appropriate reasoning and sufficient justification. If the Community institutions are not able to abandon the use of age limits, it would be preferable to clarify the relevant provision of the Staff Regulations in order to guarantee that age limits are not applied in a discriminatory or arbitrary manner.
6 Policy principle to abandon the use of age limits
6.1 The European Parliament decided on 20 October 1997 to raise the age limit to 45 years for the upcoming competitions for the starting grades with a review after two years on the basis of a report to be submitted by the personnel service to the Secretary-General of the Parliament.
6.2 Furthermore, the European Commission decided on 21 January 1998 on a policy principle to abandon age limits in its recruitment policy. In its comments on the Ombudsman's own initiative inquiry, the Commission considered it necessary to put its decision into practice in common agreement with the other institutions and that, in the meantime, the Commission will apply an age limit of 45.
6.3 In view of the above developments, the Ombudsman recognises that there is indeed a need for a common inter-institutional agreement. On the basis of the European Ombudsman's inquiries on his own initiative and taking into account the European Commission's announcement on a policy principle to abandon the use of age limits with a possible inter-institutional agreement, the Ombudsman found no grounds to further pursue his own initiative inquiry into the use of age limits.
Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark to the European Parliament:

In the context of competitions, decisions by a Selection Board to reject a candidate must state the conditions of the notice of competition which have not been fulfilled. If there is a large number of candidates, the Selection Board may initially confine itself to stating the reasons for the refusal in a summary manner and informing the candidates only of the criteria and the results of the selection. Nevertheless, the Selection Board must subsequently give an individual explanation to those candidates who expressly ask for it.

The reply by the Selection Board to the complainant did not contain sufficient details to enable the complainant to understand the factors on which the Board's decision in relation to him had been based, and to allow for a potential review of the grounds on which the decision had been taken. The reply failed therefore to give him adequate reasons for the rejection of his application.

On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark to the European Commission:

The European Ombudsman is of the view that there was a lack of adequate reasoning on the part of the Commission for not allowing a derogation from the age limit set in Open Competition COM/A/956.

The Ombudsman found that it was particularly misleading for the complainant that the optical reader form gave a possiblity to apply for a derogation from the age limit, but the Notice of Competition did not envisage such a derogation.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.

FURTHER REMARKS

The Ombudsman has requested that the European Commission keep him informed about the action undertaken in order to obtain such a common inter-institutional agreement to abolish age limits.
The Presidents of the European Parliament and the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) In a corrigendum to the Official Journal the deadline for applications was postponed to 8 December 1995 and consequently this corrigendum stipulated that candidates must be born after 8 December 1939.

(2) Joined Cases 4, 19, and 28/78 Salerno v. Commission [1978] ECR 2403, p. 2416.

(3) Case 225/82 Verzyck v. Commission [1983] ECR 1991.

(4) Case T-55/91 Olivier Fascilla V. Parliament [1992] ECR II-1757, par. 34-35.