Strasbourg, 22 April 2003

Dear Sir,

On 28 August 2002, you made a complaint to the European Ombudsman concerning competition COM/A/2/02 organised by the European Commission.

On 30 August 2002, I forwarded the complaint to the President of the Commission.

On 5 September 2002, you sent me a further e-mail in relation to your complaint to which I replied by letter of 10 September 2002. The same day, I also wrote to the Commission to inform the latter that you considered the matter to be urgent. I also forwarded a copy of your e-mail to the Commission.

The Commission sent its opinion on 29 October 2002. I forwarded it to you on 31 October 2002 with an invitation to make observations, which you sent on 28 November 2002.

On 9 December 2002, I forwarded a copy of your observations to the Commission and asked the latter to provide an opinion on the further allegation that you had submitted in your observations. The Commission sent its further opinion on 14 February 2003, and I forwarded it to you on 17 February 2003 with an invitation to make observations, if you so wished, by 31 March 2003 at the latest. No observations appear to have been received from you.

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

THE COMPLAINT

In the summer of 2002, the Commission published two open competitions, one for administrators (COM/A/1/01) and one for assistant administrators (COM/A/2/02), in the fields of agriculture, fisheries and environment(1).

According to the notice of the second competition, candidates needed to have a university degree but no professional experience. However, the notice contained the following provision (point A.II.2.b): "You will be allowed to sit the competition if you obtained the university degree required for admission after 27 September 1997."

In his complaint to the Ombudsman lodged in August 2002, the complainant (a Commission official) alleged that the condition set out at point A.II.2.b of the notice of competition constituted a clear case of discrimination on the grounds of age. He took the view that this issue had already been resolved.

It appears that the complainant thus indirectly referred to the Ombudsman’s decision of 27 June 2002 in OI/2/2001/(BB)/OV. In this decision, the Ombudsman noted that the President of the Commission had informed him of the Commission’s decision adopted on 10 April 2002 "to abolish age limits for all competitions run by the Commission with immediate effect".

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following main comments:

Competition COM/A/1/01 for administrators and competition COM/A/2/02 for assistant administrators should be considered together. For the competition concerned (competition COM/A/2/02), no professional experience was required but candidates needed to have obtained the university degree required after 27 September 1997 or a post-graduate qualification directly relevant to the areas of activity concerned after 27 September 1999. For competition COM/A/1/01, the date of the degree was irrelevant, and the only requirement was that by 27 September 2002 (the closing date for the submission of applications) candidates had at least three years’ professional experience corresponding to the duties concerned.

The "recent degree" clause that applied to the competition concerned was broader than in previous competitions, in the sense that the degree that was required for admission to the competition had to be obtained less than five years before the closing date for the submission of applications (rather than three years as previously). Second, the present notice of competition offered an alternative eligibility condition, namely the acquisition of a post-graduate qualification obtained less than three years previously. This qualification did not need to have been obtained immediately after the first degree, but could have been acquired as a result of additional training during the candidate’s professional career (even 5, 10 or 15 years after starting work).

The competition concerned was for career bracket A8 (assistant administrator), which is the basic A-grade career bracket. The requirement of a recently obtained degree was a condition based on the nature of the posts to be filled, as the Ombudsman had stated in point 1.4 of his decision on joint complaints 428/98/JMA and 464/98/JMA(2). In the case of recruitment in the basic career bracket, the Commission required recent or "fresh" knowledge.

The argument that the "recent degree" clause resulted in discrimination on the grounds of age was based on the assumption that only young people studied. However, people who were not young but who engaged in study during their working life would meet the requirement in the same way as young people.

Furthermore, as the competition concerned was running in parallel with competition COM/A/1/02, anyone who had obtained his first degree more than five years previously could apply for this competition.

The appointing authority, in the interest of the service and having regard to the posts covered by the competition in question, had therefore legally and legitimately been able to impose the condition concerned.

The complainant's observations

In his observations, the complainant maintained his complaint. He queried how a candidate who had obtained his degree four and a half years ago could be considered as possessing a "fresh degree" whereas one who had acquired his degree five and a half years ago was excluded from the competition. The complainant further submitted that in view of the rapid technological and scientific development, the period since the acquisition of the "recent degree" should be reduced rather than extended. In the complainant’s view, the condition should be abolished altogether and the "fresh knowledge" tested during the competition itself.

According to the complainant, not only, but mostly young people studied. As a consequence, a condition like the one at issue in the present case excluded mostly persons of a higher age and therefore constituted discrimination on the grounds of age in the complainant’s view.

The complainant added that the fact that the relevant competition was running in parallel with competition COM/A/1/02 did not change anything since this competition required three years’ professional experience and thus excluded many categories of graduates.

In the complainant’s view, the relevant condition also discriminated on the grounds of sex. He pointed out that a woman who had obtained her degree six or more years before the relevant date, and who had then had children, was punished by being excluded from the competition. The complainant argued that in a previous competition (competition COM/LA/9/99), the Commission had protected such categories of persons.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman therefore forwarded a copy of the complainant’s observations to the Commission and asked the latter to provide an opinion on the further allegation that had been submitted by the complainant and according to which the relevant condition also constituted discrimination on the grounds of sex.

The Commission’s second opinion

In its second opinion, the Commission made the following comments:

The Commission’s aim in organising competition COM/A/1/01 for administrators and competition COM/A/2/02 for assistant administrators was to ensure a balance between the recruitment of officials (men and women) with a certain amount of confirmed professional experience and officials (men and women) with more freshly acquired knowledge. It was certainly true that some people (men and women) had not obtained their degree after the date stipulated in the notice of competition or did not have the required professional experience. This did however not amount to discrimination, either on the grounds of age or between men and women. Competitions were not deemed to be open to all candidates who had obtained their degree since the last general competition had been organised. The fact was that the Commission and the other institutions organised their competitions to recruit officials based on the needs of their services. To this end, they had considerable discretion, provided they observed the general provisions of the Staff Regulations. It was thus quite normal for notices of competition to differ, depending on the profiles of the officials the Commission wished to recruit.

The notice of competition COM/LA/9/99 that had been published in 1999 provided that derogations from the cut-off date for obtaining the relevant degree were possible for candidates who had completed compulsory military service, who had had an uninterrupted break from paid employment for at least one year in order to look after a dependent child (this was presumably what the complainant had in mind) or who had a physical disability. Whilst it was true that these derogation clauses were no longer included in notices of competition published by the Commission, the eligibility criteria had also changed compared to previous notices of competitions. For example, the competition referred to by the complainant had still included an age limit (45 years).

Differences between notices of competition did not constitute discrimination or failure to comply with the principle of equal opportunities. The criteria and conditions laid down in notice of competition COM/A/2/02 applied equally to all candidates who were in the same position, regardless of whether they were male or female.

The complainant’s observations

No observations were received from the complainant.

THE DECISION

1 Alleged discrimination on the grounds of age in competition COM/A/2/02

1.1 In the summer of 2002, the Commission published a competition for assistant administrators (COM/A/2/02) in the fields of agriculture, fisheries and environment. Candidates needed to have a university degree but no professional experience. However, the notice of competition contained the following provision (point A.II.2.b): "You will be allowed to sit the competition if you obtained the university degree required for admission after 27 September 1997." The complainant, a Commission official, considered that this condition amounted to discrimination on the grounds of age.

1.2 The Commission pointed out that candidates were also eligible if they had obtained a post-graduate qualification directly relevant to the areas of activity concerned after 27 September 1999. In the Commission’s view, the relevant competition and competition COM/A/1/01 for administrators that had been published with the said competition should be considered together. For competition COM/A/1/01, the date of the degree was irrelevant, and the only requirement was that by 27 September 2002 (the closing date for the submission of applications) candidates had to have at least three years’ professional experience corresponding to the duties concerned. As the competition concerned was running in parallel with competition COM/A/1/02, anyone who had obtained his first degree more than five years previously could apply for this competition. According to the Commission, the requirement of a recently obtained degree was a condition based on the nature of the posts to be filled, and in the case of recruitment in the basic career bracket, the Commission required recent or "fresh" knowledge. The Commission also noted that the "recent degree" clause that applied to the competition concerned was broader than in previous competitions, in the sense that the degree that was required for admission to the competition had to be obtained less than five years before the closing date for the submission of applications (rather than three years as previously).

1.3 The Ombudsman notes that the relevant competition was for career bracket A8 (assistant administrator), which is the basic A-grade career bracket and for which no previous professional experience is required. He further notes that the institutions and bodies of the EU organise their competitions in order to recruit officials based on the needs of their services, and that they have considerable discretion in doing so, provided that they comply with the Staff Regulations and other legal rules that are binding upon them. The Ombudsman takes the view that by requiring candidates for A8 posts to have a university degree that has been obtained in the recent past, the Commission has acted within the limits of its legal authority(3). The same conclusion holds true for the Commission’s decision to set the period during which the degree had to be obtained at five years before the closing date.

1.4 The Ombudsman further notes that the "recent degree" clause that applied to the competition concerned was broader than corresponding clauses applied in previous competitions and that the Commission organised competition COM/A/1/01 for administrators concurrently with the competition concerned. Candidates who had obtained their university degree on or before 27 September 1997 but who had three years’ professional experience corresponding to the duties concerned were thus able to take part in competition COM/A/1/01.

1.5 The Ombudsman therefore considers that there was no maladministration on the part of the Commission in so far as the complainant’s original allegation is concerned.

2 Alleged discrimination between women and men in competition COM/A/2/02

2.1 In his observations on the Commission’s opinion, the complainant took the view that the relevant clause in the notice of competition COM/A/2/02 also constituted discrimination on the grounds of sex(4). In his view, a woman who had obtained her degree six or more years before the relevant date, and who had then had children, was punished by being excluded from the competition. The complainant pointed out that in a previous competition (competition COM/LA/9/99), the Commission had provided for exceptions in such cases.

2.2 The Commission admitted that the notice of competition COM/LA/9/99 had provided that derogations from the cut-off date for obtaining the relevant degree were possible, notably for candidates who had had an uninterrupted break from paid employment for at least one year in order to look after a dependent child, and that the notice of competition COM/A/2/02 did not contain any such clause. It took the view, however, that differences between notices of competition did not constitute discrimination or failure to comply with the principle of equal opportunities. The Commission further pointed out that the eligibility criteria had also changed and that the competition referred to by the complainant had for example still included an age limit (45 years) whilst the notice of the relevant competition did not contain any such clause.

2.3 It is good administrative practice to ensure equal opportunities between women and men when deciding on the conditions to be fulfilled by candidates at competitions organised by Community institutions or bodies. Given that it is still mostly women that look after dependent children, these conditions thus have to take sufficient account of the special problems that may arise from this fact. The Ombudsman notes that there was a significant difference in this respect between the competition which is the subject of the present complaint and a previous competition organised by the Commission. The notice of competition COM/LA/9/99 provided that in such cases the cut-off date (that is to say the date after which the required university degree had to be obtained) could be extended by the time spent out of employment for a period of up to two years per child, with a maximum of five years in all. Whilst it is true that mere differences between notices of competition do not constitute proof of discrimination, the fact remains that the Commission does not seem to have taken any precautions to accommodate women who were in a similar situation. As a consequence, a woman who had obtained her degree on or some time before 27 September 1997 and who had subsequently taken time off work in order to bring up her children was likely to find herself at a disadvantage compared to male candidates, since she would have been neither able to take part in the competition concerned nor (unless she had nevertheless acquired three years’ professional experience) to take part in competition COM/A/1/01.

2.4 The Ombudsman considers that the Commission has not provided a satisfactory explanation as to why no account was taken of these specific problems in the competition concerned although the Commission must have been aware of them, as the notice of competition COM/LA/9/99 shows. The fact that the competition concerned is different from previous ones in that it no longer contains an age limit, laudable as this change is in itself, does not remedy this omission.

2.5 In these circumstances, the Ombudsman takes the view that by omitting to take sufficient account of the situation of women bringing up children when drafting the notice of competition COM/A/1/02, the Commission has failed to ensure equal opportunities between women and men. This is an instance of maladministration, and a critical remark will be made in this respect.

3 Conclusion

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

It is good administrative practice to ensure equal opportunities between women and men when deciding on the conditions to be fulfilled by candidates at competitions organised by Community institutions or bodies. In the present case, the Ombudsman takes the view that by omitting to take sufficient account of the situation of women bringing up children when drafting the notice of competition COM/A/1/02, the Commission has failed to ensure equal opportunities between women and men. This is an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. In view of the fact that it is likely that most competitions will in the future be organised not by the Commission but by the European Personnel Selection Office, the Ombudsman considered that it would not be appropriate to make a draft recommendation, either. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision. An anonymised version of this decision will furthermore be sent to the European Personnel Selection Office for its information.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ no. C 177 A of 25 July 2002, page 13.

(2) Point 1.4 of this decision (adopted on 21 July 2000) reads as follows: ”The Commission has justified the application of this clause on the basis of the nature and functions to be carried out by assistant administrators. Since A8 officials are not deemed to have any relevant professional experience prior to their joining the Commission, the institution has set a date - usually no more than 2 or 3 years before the competition - for the completion of their studies. The ’freshness’ of the diploma appears thus as a specific condition based on the nature of the posts to be filled.” Point 1.5 reads: ”In view of the nature of the tasks to be entrusted to an assistant administrator, and also taking into account that their recruitment has traditionally been done among recently graduated university students, the Ombudsman considers that the argumnets put forward by the Commission seem reasonable. Moreover, the limitations imposed by this clause appear to be proportional to their purported aim, namely to enable the institution to better target prospective A8 candidates.”

(3) Cf. the Ombudsman’s decision of 21 July 2000 on complaints 428/98/JMA and 464/98/JMA and his decision of 28 March 2003 on complaint 1536/2002/OV (which also concerned competition COM/A/2/02).

(4) It should be noted that no such allegation had been made in complaints 428/98/JMA, 464/98/JMA or 1536/2002/OV (see preceding footnote).