Strasbourg, 21 December 2006

Dear Ms J.,

On 29 April 2005, you made a complaint to the European Ombudsman concerning the European Commission's handling of your possible recruitment in 2004.

On 10 May 2005, I forwarded the complaint to the President of the Commission. A further e-mail that you addressed to me on 6 May 2005 was forwarded to the Commission on 18 May 2005.

On 15 July 2005, you sent me further information in relation to your complaint. I forwarded this information to the Commission on 25 July 2005.

The Commission sent its opinion on 26 July 2005 (French original) and 12 October 2005 (German translation). I forwarded it to you on 28 September 2005 (French original) and 17 October 2005 (German translation) with an invitation to make observations, which you sent on 30 October 2005.

On 5 December 2005, I asked the Commission for further information concerning this case by 15 January 2006 at the latest. The Commission sent the French original of its reply on 9 March 2006.

In an e-mail sent on 16 March 2006, you asked about progress on this case. In my reply of 16 March 2006, I informed you that the German translation of the Commission's reply had not been received yet. A copy of the French original of this text was forwarded to you on this occasion. On 28 March 2006, you thanked me for this letter.

The Commission submitted the German translation of its reply on 24 March 2006, and I forwarded to you on 31 March 2006 with an invitation to make observations, which you sent on 29 April 2006.

On 22 June 2006, I asked the Commission for further information concerning this case. The Commission sent its reply (dated 25 August 2006) on 14 September 2006. I forwarded it to you on 21 September 2006 for your observations, which you sent on 30 October 2006.

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

THE COMPLAINT

The complaint

According to the complainant, the relevant facts are as follows:

The complainant used to work as a C grade auxiliary agent for the European Commission's Directorate-General Interpretation ("DG SCIC") in the latter's Directorate Meetings and Conferences. B and C grade officials and auxiliaries performed the same functions there. The complainant's contract ended in December 2003 and could not be extended on the basis of the existing rules.

In December 2003, DG SCIC published an internal notice of vacancy (COM/2003/3706/F) for a B grade post. However, no suitable candidate could be found.

Much to her surprise, the complainant received a letter dated 21 April 2004 from the Commission concerning her possible recruitment as a temporary agent. The complainant was asked to undergo a medical examination and to report to the personnel department the same day in order to complete her existing personal file.

The medical examination took place on 6 May 2004. The official in charge at the personnel department told the complainant on the same day that the recruitment committee would proceed to a classification after having received the results of the medical examination and that she would then receive an offer within 4 or 5 weeks.

No further news was received from Directorate-General Personnel and Administration ("DG ADMIN") and the complainant's doctor had still not been informed about the result of the medical examination. The complainant's former superior, whom she contacted by telephone, informed her that DG ADMIN seemed to have problems with her documents and that she was therefore not eligible for the relevant post. However, this had never been confirmed in writing.

The complainant later learnt that a young Italian national had been recruited. This person had "helped" in the complainant's department for about two months and had hardly any professional experience. The appointment had caused general surprise, given that the average age in the department concerned was around 48 years and that until then great emphasis had been laid on professional experience.

On 22 March 2005, the complainant contacted the person in charge at the Commission by telephone. This person promised to look into the matter and to return to her by 4 April 2005 at the latest. On 11 April 2005, and in the absence of a reply, the complainant sent an e-mail asking for clarifications. A further contact by telephone on 28 April 2005 also proved to be unsuccessful.

In her complaint to the Ombudsman, the complainant alleged that there had been delays, a lack of transparency, a refusal to provide information and discrimination.

The complainant claimed that DG ADMIN should explain in writing (1) why her application had not been pursued as agreed, (2) why she had never been informed, (3) why the results of the medical examination had not been passed on to her doctor and (4) why the relevant information was still being withheld, despite several requests for information on her part.

The complainant suggested that, as compensation for the abortive handling of her application, DG ADMIN could submit her "in-house expertise" as a conference organiser to those DGs that were looking for a central organiser of their conferences "of their own".

The complainant submitted a reference issued by the Commission attesting that she had worked as a conference organiser for the Commission from 29 September 2000 until 31 December 2003 and that her work had always led "to a full success".

Further correspondence

On 6 May 2005, the complainant forwarded to the Ombudsman an e-mail that she had received from the Commission on 3 May 2005 in reply to her e-mail of 11 April 2005 and her letter of 28 April 2005. According to this e-mail, DG ADMIN had informed DG SCIC in a note dated 26 April 2004 of the reasons why it could not agree to the recruitment of the complainant. DG ADMIN submitted that it was now for DG SCIC to send her a note explaining these reasons.

On 15 July 2005, the complainant forwarded to the Ombudsman a letter dated 16 June 2005 that she had received from DG SCIC. In this letter, DG SCIC quoted the reasons that had been put forward by DG ADMIN and that can be summarised as follows: The handling of the matter had had to be delayed until the announcement of new rules as regards the filling of vacant posts with temporary agents. These rules had been announced on 24 March 2004. After the medical examination, the complainant had been asked to produce the documents that were necessary, notably as regards her diplomas and professional experience. However, the complainant did not possess the diploma of post-secondary education (like an "Abitur") that was now required for recruitment in function group AST (categories C* and B*). The relevant requirement was laid down in Article 5(3) (a) of the Staff Regulations of officials of the European Communities (the "Staff Regulations"). This provision allowed the institution to consider professional training or professional experience of an equivalent level as being sufficient where this was justified in the interests of the service. However, both the Commission and the European Personnel Recruitment Office ("EPSO") excluded the possibility of using this provision, since the interests of the service could not be seriously invoked in the circumstances. DG SCIC concluded its letter by saying that it had assumed that these reasons had already been communicated to the complainant and apologised for the fact that this had not been done previously.

In her letter of 15 July 2005, the complainant pointed out that she had been invited to the medical examination by letter of 21 April 2004 and that this examination had not been cancelled although DG SCIC had already been informed of DG ADMIN's position by note of 26 April 2004. The complainant also stressed that DG ADMIN had been in possession of all her diplomas and of all the information concerning her professional experience and had thus known that she did not have an "Abitur". At the meeting on 6 May 2004, Mrs L., the official in DG ADMIN with whom she had raised this issue, had told her that this would not cause any problems.

The complainant added that she had a "Post-graduat en commerce international" (post-graduate diploma in international trade) awarded by the Université Libre de Bruxelles, a "Certificat de connaissance de gestion" from the Belgian authorities and an "Attestation de formation professionnelle". She also provided detailed information on her professional experience within the Commission and letters from various Commission services praising her work. The complainant noted that she wondered what purpose the Staff Regulations had if the institution reserved the right to apply stricter selection criteria.

THE INQUIRY

The Ombudsman's approach

On 10 May 2005, the Ombudsman asked the Commission for an opinion on the allegations and claims set out in the complaint.

The Ombudsman subsequently forwarded copies of the complainant's e-mail of 6 May 2005 and of her letter of 15 July 2005 to the Commission.

The Commission's opinion

In its opinion, the Commission made the following comments:

As to the facts

On 11 December 2003, the notice of vacancy no COM/2003/3706/F had been published. No internal application from a B grade official had been received, and the only person whose name was on a reserve list and who might have been suitable had proved not to have the knowledge and the professional experience that was required. On 28 January 2004, DG SCIC had therefore asked DG ADMIN to recruit the complainant as a temporary agent on a permanent post. DG SCIC had requested that the complainant be engaged for an initial period of two years as from 1 March 2004. The complainant's CV was attached to this note.

DG ADMIN had thereupon launched the recruitment procedure by inviting the complainant to the medical examination and by asking her to call at DG ADMIN in order to update her application file. The letter of invitation dated 21 April 2004 had made it clear that this invitation did not constitute any commitment of the Commission as regards the complainant.

The complainant had passed the medical examination and presented herself to DG ADMIN on 6 May 2004.

Having examined the complainant's application file, DG ADMIN had found that the complainant did not possess the diploma of post-secondary education that was required for her recruitment. In fact, the complainant's diploma ("Realschulabschluss") did not give access to post-secondary education, and the "Post-graduat en commerce international" and the "Certificat de connaissance de gestion" were not equivalent to or did not constitute proof of an "Abitur" or equivalent diploma.

However, the requirements as to diplomas that were laid down in Article 5(3) of the Staff Regulations and that were in force since 1 May 2004 were, as regards function group AST (categories B* and C*), the following:

"(i) a level of post-secondary education attested by a diploma, or

(ii) a level of secondary education attested by a diploma giving access to post-secondary education, and appropriate professional experience of at least three years (...)".

Given that the complainant could thus not be recruited, DG ADMIN informed DG SCIC accordingly by note of 24 June 2004.

As regards the complainant's allegations

The complainant asked for explanations as to (1) why she had not been recruited; (2) why she had never been informed; (3) why the results of her medical examination had not been passed on to her doctor and (4) why the relevant information had been withheld, despite several requests for information made by her.

First issue

As a result of the reform of the rules governing the staff of the Communities(1) that took effect on 1 May 2004, the educational requirements for recruitment in function group AST had been newly defined. According to Article 5 of the Staff Regulations, applicants thus now needed to possess either a university diploma or a "baccalauréat" (and relevant professional experience of at least three years).

Article 5(3) (a) (iii) of the Staff Regulations provided for the possibility to recognise professional training or professional experience of an equivalent level, where this was justified in the interests of the service. However, the institution had the possibility to impose standards that were stricter than those foreseen by the Staff Regulations. The Commission and EPSO excluded the possibility to rely on the said provision as regards the admission to competitions or the recruitment of temporary agents under Article 2(b) of the Conditions of Employment of other servants of the European Communities (the "Conditions of Employment")(2). In fact, the Commission considered that the recruitment of temporary agents on permanent posts (that should thus in principle be reserved to civil servants to be transferred from other positions or to candidates having succeeded in a competition) should take place on the basis of eligibility criteria that were at least equivalent to those imposed on the occasion of the competitions concerned.

Seen from this perspective, recruitments under Article 2(b) - and Article 2(d)(3) - of the Conditions of Employment thus presented particularities as compared to recruitments under Article 2(a) and, to some extent, under Article 2(c) of the Conditions of Employment, which concerned temporary posts or posts for the assistance of persons holding an office provided for in the Community Treaties.

Besides, Article 5 (3) (a) (iii) of the Staff Regulations permitted derogating from the normal requirements "where justified in the interests of the service". It thus provided a possibility that the Commission was not obliged to use, given the wide discretion of which it disposed. This discretion was always exercised in the interests of the service. However, the interests of the service did not, in the present case, justify derogation from the above-mentioned principles.

The Commission's decision not to recruit the complainant had therefore been in conformity with the Staff Regulations and with its internal rules.

Second issue

In cases where there were problems concerning the recruitment of a temporary agent on a permanent post, DG ADMIN passed the relevant information on to the DG that had proposed the recruitment. According to established administrative practice, it was this DG that served as interlocutor with the candidates. The present complaint showed that this practice did not always guarantee results that were in conformity with principles of good administration. DG ADMIN had therefore taken action to ensure that candidates are always informed in case of a negative decision. When informing the relevant DG of the negative outcome, DG ADMIN would therefore henceforth clearly invite the service concerned to inform the candidate.

As regards the present case, there had been a malfunctioning of which the Commission had taken note and for which it apologised. However, it should be noted that the complainant had been informed by DG ADMIN in an e-mail sent on 3 May 2005 that her application had been rejected. An official reply setting out the reasons for the Commission's decision had been sent to the complainant on 16 June 2005.

Third issue

The medical examination was carried out by and for the institution. Its results were therefore never passed on to any other person. However, the candidate concerned had the possibility of obtaining access to these results by contacting the doctor of the institution that had handled the examination.

Where the results of the medical examination were outside the normal limits, the candidate was obviously always informed.

In any event, the complainant had been declared apt for serving by the Commission's medical service.

Fourth issue

As regards the information about the rejection of the complainant's application, the Commission could only regret the inconvenience caused by the way in which the matter had been handled. In so far as the results of the medical examination were concerned, reference was made to the comments on the third issue.

Conclusion

The Commission had been unable to recruit the complainant, since her education did not match the statutory requirements. If the complainant should wish to obtain the results of her medical examination, she was welcome to contact the doctor who had handled the examination. In order to avoid the risk of any further problems in the relevant area, the Commission committed itself to reminding its services that it was their duty to inform candidates who did not fulfil the conditions for recruitment.

The complainant's observations

In her observations, the complainant made the following comments:

The procedure that had been followed in her case was devoid of all logic. DG ADMIN had had all the necessary information before inviting her to the medical examination. It was therefore not rational that DG ADMIN did not even check these documents before inviting her to the medical examination.

As regards her diplomas, due account should be taken of her German diploma. The "Post-graduat en commerce international" had presupposed a university diploma (for which an "Abitur" would have been needed) or equivalent professional experience.

As regards Article 5(3) (a) (iii) of the Staff Regulations, it was not understandable why her specific knowledge was suddenly called into question. A professional experience of nearly 30 years in three European countries should at least be considered equivalent to an "Abitur".

As regards the medical examination, the Commission's position was peculiar. Given that the relevant form had asked for the address of her doctor to be indicated, she had assumed that the results would be transmitted to this doctor. There was a right to know, given that personal data was concerned.

The complainant concluded by stressing that she felt discriminated against, given that for persons of her age the situation that had prevailed at the time was completely disregarded and that the selection criteria were only based on the modern, widely harmonised education systems in Europe. Young candidates were thus automatically favoured compared to older candidates.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for a supplementary opinion and for further information

On 5 December 2005, the Ombudsman therefore asked the Commission to provide him with the following information:

1. In its opinion, the Commission had noted that it considered itself entitled not to apply Article 5(3) (a) (iii) of the Staff Regulations to certain types of temporary agents, namely those described in Article 2(b). However, Article 10(1) of the Conditions of Employment stipulates as follows: "Articles 1d, 1e, 5(1), (2), (3) and (4), and Article 7 of the Staff Regulations shall apply by analogy." The Ombudsman therefore asked the Commission to explain on what legal basis it assumed that Article 5(3) (a) (iii) of the Staff Regulations was only applicable to certain kinds of temporary staff.
2. From the copy of DG SCIC's note to DG ADMIN of 28 January 2004 it emerged that the recruitment of the complainant had been requested on the grounds that (1) the job concerned was specific, (2) there were no internal candidates and (3) there was no reserve list corresponding for this type of job. In these circumstances, the Ombudsman asked the Commission to explain why it considered that there was no interest of the service that would have justified Article 5(3) (a) (iii) of the Staff Regulations to be applied (by analogy) in the present case.
3. The Ombudsman also asked the Commission to specify when and how the relevant post had ultimately been filled.

The Ombudsman also asked the Commission for a supplementary opinion on the two further allegations that the complainant had made in her observations and which could be summarised as follows:

1. The procedure followed by DG ADMIN had been inadequate and devoid of all logic. DG ADMIN should not have invited her to the medical examination without first checking the documents in its possession.
2. The Commission's approach resulted in discrimination on the grounds of age, given that for persons of her age the situation that had prevailed at the time was completely disregarded and that the selection criteria were only based on the modern, widely harmonised education systems in Europe. Young candidates were thus automatically favoured compared to older candidates.

The Commission's reply

In its reply, the Commission made the following comments:

Article 5 of the Staff Regulations only established minimum conditions for recruitment. The competent authorities of the Commission had a discretionary power which allowed them to impose stricter requirements. This practice had been confirmed by the Community courts(4).

The structure of Article 5(3) (a) (iii) indicated that the possibility to take into account professional training or professional experience of an equivalent level was an exception that had to be interpreted restrictively. The fact that this exception was, as a general rule, limited to the recruitment of temporary agents pursuant to Article 2(c) of the Conditions of Employment was justified by the "ad personam" character of their contracts.

The interests of the service referred to in Article 5(3) (a) (iii) concerned the possible recognition of the equivalence of a professional training or of professional experience. This should not be confused with the simple interest of filling a vacant post which could not be filled with an internal candidate or a candidate who had passed a competition. The mere need to recruit a temporary agent on a vacant post could not oblige the competent authorities to reduce their requirements as to the education that was needed for this post. The Commission did not see any interests of the service that could require recourse to Article 5(3) (a) (iii) in the present case. Besides, in accordance with established case-law it was for the institution concerned to ascertain whether a candidate fulfilled the conditions set out in a notice of vacancy, and this appraisal could only be questioned in case of a manifest error. Control by external authorities was thus limited to ascertaining whether there had been a manifest error or an abuse of power. In the present case, there had been neither.

The Commission considered that the principle of equal treatment required that, within the framework of the administrative practice described above, the education demanded by the Staff Regulations (without reference to Article 5(3) (a) (iii) thereof) should also be required for the recruitment of temporary agents pursuant to Article 2(b) of the Conditions of Employment.

Besides, Article 27 of the Staff Regulations provided that the recruitment should be directed to securing the services of officials (and, by analogy, of temporary agents) of the highest standard of ability, efficiency and integrity.

The relevant post had been filled by the recruitment of a temporary agent on 1 September 2004.

As regards the complainant's new allegations, it was the Commission's usual practice to invite candidates for the medical examination and for a visit to DG ADMIN the same day, in order to save both travel expenses and candidates' time. This approach was perfectly logical from a budgetary point of view and as regards efficiency. There had furthermore not been any discrimination based on age. The absence of the required diploma could be found in the case of a young candidate just as well as in that of an older one.

The complainant's observations

In her observations, the complainant pointed out, as regards the applicability of Article 5(3) (a) (iii) of the Staff Regulations, that the notice of vacancy published on 11 December 2003 had required relevant education or professional experience in the field. As regards the interest of the service, the complainant submitted that she had held the very post concerned until 31 December 2003. Given that C grade officials continued to do the same work as B grade officials in the unit concerned, the complainant considered the Commission's argument risible. She asked how many C grade officials would need to obtain their "Abitur" if one applied the Commission's new standards.

The complainant also submitted that the temporary agent who had been given the post had no professional experience apart from the three months that she had spent in the relevant unit. According to the complainant, there were so many 'coincidences' and 'links' in this case that the relevant appointment could not be considered as having been carried out in a 'neutral' or 'just' way.

The complainant added that she had not objected to the fact that she had been asked to call at DG ADMIN on the day of her medical examination, but that she had wished to stress that all her documents had already been available and that the level of her education and of her professional experience had thus already been known.

Second request for further information

After careful consideration of the Commission's reply and the complainant's observations, it appeared that further inquiries were necessary.

On 22 June 2006, the Ombudsman therefore asked the Commission to provide him with the following information:

1. Could the Commission please clarify whether it considers that Article 5(3) (a) (iii) of the Staff Regulations should, as far as the Commission is concerned, not be applied at all as regards the recruitment of temporary agents on permanent posts ?
2. In the first of the further allegations that the Ombudsman forwarded to the Commission on 5 December 2005, the complainant objected to the procedure followed by DG ADMIN as having been inadequate and devoid of all logic. In this context, the complainant submitted that DG ADMIN should not have invited her to the medical examination without first checking the documents in its position. The Commission's opinion on this allegation does not appear to address this aspect of the case. Could the Commission therefore please provide its views concerning this issue ?

The Ombudsman also asked the Commission to provide a copy of a document to which DG ADMIN's note of 24 June 2004 had referred and which appeared to be relevant in this context.

The Commission's reply

In its reply, the Commission made the following comments:

The first question put by the Ombudsman was not relevant in the present case. According to established case-law, the Appointing Authority was not entitled to deprive itself of the discretionary power that the Staff Regulations put at its disposal. Thus, far from considering that that Article 5(3) (a) (iii) of the Staff Regulations should never be applied as regards the recruitment of temporary agents on permanent posts, the Commission was conscious of the need for a case by case evaluation and of the fact that such an evaluation could, in exceptional cases, lead to the conclusion that the interest of the service justified using this provision.

The relevant question therefore was whether there were, in the present case, specific reasons justifying an interest of the service to derogate from the general rules, i.e., Article 5(3) (a) (i) and (ii) of the Staff Regulations. In the present case, and as already explained, no such reasons had been identified.

As regards the Ombudsman's second question, the Commission did not share the complainant's view. The procedures for the recruitment of officials and temporary agents were adapted to the multitude of cases that arose. Such procedures had to be standardised in order to allow for a constant rhythm of work and to ensure a high level as regards recruitment. In this context, the Commission's services were not in a position to proceed to a detailed, preliminary examination of a file at a stage where the recruitment was not yet imminent. In order to allow for an efficient handling, such an examination was made at the moment when the decision of the Appointing Authority was prepared, i.e., at a moment when all the other conditions for recruitment were fulfilled.

Together with its opinion, the Commission provided a copy of the document that the Ombudsman had requested. This document is a note dated 18 May 2004 (reference ADMIN/A-D(204)12797) which DG ADMIN addressed to the persons in charge of human resources within the Commission's services. Attached to this document is a "Checklist à l'usage des services demandeurs" concerning the recruitment of temporary agents within the meaning of Article 2(b) of the Staff Regulations.

The complainant's observations

In her observations, the complainant maintained her complaint. She stressed that she had submitted her application at the request of DG SCIC and that this application concerned a post requiring a specific profile. The Commission's argument that DG ADMIN had been unable to carry out an advance check of her documents, given that such an approach was not possible in the context of a multitude of applications, was thus without foundation.

The complainant thanked the Ombudsman for the consequent handling of her case. Given that she did not expect DG ADMIN to change its position, the complainant asked the Ombudsman to bring his inquiry to an end.

THE DECISION

1 The relevant facts

1.1 From September 2000 until the end of 2003, the complainant worked as a C grade auxiliary agent for the European Commission's Directorate-General Interpretation ("DG SCIC") in the latter's Directorate Meetings and Conferences, where she performed the functions of a conference organiser. According to the complainant, who was not challenged on this point by the Commission, B and C grade officials and auxiliaries performed the same functions in this service. The complainant's contract ended in December 2003 and could not be extended on the basis of the existing rules.

1.2 In December 2003, DG SCIC published an internal notice of vacancy (COM/2003/3706/F) for the post of a conference organiser. This post, which was a permanent post, was advertised as a B grade post. However, no suitable candidate could be found.

1.3 On 28 January 2004, DG SCIC asked the Commission's Directorate-General Administration and Personnel ("DG ADMIN") to recruit the complainant as a temporary agent to fill the relevant post for an initial period of two years.

1.4 On 21 April 2004, the Commission wrote to the complainant concerning her possible recruitment as a temporary agent. The complainant was asked to undergo a medical examination on 6 May 2004 and to report to the personnel department the same day in order to complete her existing personal file. According to the complainant, the official in charge at DG ADMIN told her that day that the recruitment committee would proceed to a classification after having received the results of the medical examination and that she would then receive an offer within 4 or 5 weeks.

1.5 In the absence of further news, the complainant telephoned her former superior, who informed her that DG ADMIN seemed to have problems with her documents and that she was therefore not eligible for the relevant post.

1.6 On 22 March 2005, the complainant contacted the person in charge at the Commission by telephone who promised to look into the matter and to return to her by 4 April 2005 at the latest. On 11 April 2005, and in the absence of a reply, the complainant sent an e-mail asking for clarifications. A further contact by telephone on 28 April 2005 also proved to be unsuccessful.

1.7 On 29 April 2005, the complainant turned to the Ombudsman.

2 The scope of the inquiry and of the present decision

2.1 In her complaint, the complainant alleged that there had been (1) delays, (2) lack of transparency, (3) refusal to provide information and (4) discrimination. The complainant claimed that DG ADMIN should explain in writing (1) why her application had not been pursued as agreed, (2) why she had never been informed, (3) why the results of the medical examination had not been passed on to her doctor and (4) why the relevant information was still being withheld, despite several requests for information on her part. The Ombudsman therefore asked the Commission for an opinion on this case. Given that both the complainant's allegation and her claim covered four issues, each of these issues will be considered as constituting a separate allegation or claim for the purposes of this decision.

2.2 In her observations on the Commission opinion, the complainant submitted two further allegations, namely (1) that t he procedure followed by DG ADMIN had been inadequate and devoid of all logic, since DG ADMIN should not have invited her to the medical examination without first checking the documents in its possession, and (2) that t he Commission's approach resulted in a discrimination on the grounds of age. The Ombudsman carried out further inquiries and asked the Commission to present a supplementary opinion on these new allegations. These allegations will be referred to as the fifth and sixth allegation in the present decision.

2.3 The Ombudsman considers that the first three allegations and the four claims belong together and should therefore be examined together. These aspects of the complaint in essence concern the Commission's alleged failure to inform the complainant in good time of the reasons for not offering her a post.

2.4 The fourth and the fifth allegation both concern the question as to whether there was discrimination and should therefore also be examined together.

2.5 In her complaint, the complainant pointed out that the relevant post had been filled with a young applicant who had hardly any professional experience. The Commission did not dispute this statement. In reply to a question put to it by the Ombudsman, it explained that t he relevant post had been filled by the recruitment of a temporary agent on 1 September 2004. In her observations on the Commission's reply, the complainant submitted that there were so many 'coincidences' and 'links' in this case that the relevant appointment could not be considered as having been carried out in a 'neutral' or 'just' way. The Ombudsman notes, however, that the complainant does not dispute that the person who was given the post fulfilled the conditions set by the Commission. Furthermore, the complainant has not provided any tangible evidence or at least indications as to why she suspects that this recruitment decision was improper. In these circumstances, the Ombudsman considers that there are not sufficient grounds that would justify extending the present inquiry so as to cover this recruitment decision as well. The complainant remains free, however, to submit a new complaint concerning this issue, provided that she submits more concrete elements to support her case.

3 As regards the Commission's alleged failure to inform the complainant in good time of the reasons for not offering her a post

3.1 The complainant alleged that there had been delays, lack of transparency and refusal to provide information. She claimed that DG ADMIN should explain in writing why her application had not been pursued as agreed, why she had never been informed , why the results of her medical examination had not been passed on to her doctor and why the relevant information was still being withheld, despite several requests for information on her part.

3.2 In its opinion, the Commission explained that on 11 December 2003, notice of vacancy no COM/2003/3706/F had been published. No internal application from a B grade official had been received, and the only person whose name was on a reserve list and who might have been suitable had proved not to have the knowledge and the professional experience that was required. On 28 January 2004, DG SCIC had therefore asked DG ADMIN to recruit the complainant as a temporary agent on a permanent post. DG ADMIN had thereupon launched the recruitment procedure by inviting the complainant to the medical examination and by asking her to call at DG ADMIN in order to update her application file. The letter of invitation dated 21 April 2004 had made it clear that this invitation did not constitute any commitment of the Commission as regards the complainant. The complainant had passed the medical examination and presented herself to DG ADMIN on 6 May 2004.

Having examined the complainant's application file, DG ADMIN had found that the complainant did not possess the diploma of post-secondary education that was required for her recruitment under Article 5(3) of the the Staff Regulations of officials of the European Communities (the "Staff Regulations"). Given that the complainant could thus not be recruited, DG ADMIN had informed DG SCIC accordingly by note of 24 June 2004.

The Commission added that in cases where there were problems concerning the recruitment of a temporary agent on a permanent post, DG ADMIN passed the relevant information on to the DG that had proposed the recruitment. According to established administrative practice, it was this DG that served as interlocutor with the candidates. The present complaint showed that this practice did not always guarantee results that were in conformity with principles of good administration. DG ADMIN had therefore taken action to ensure that candidates are always informed in case of a negative decision. When informing the relevant DG of the negative outcome, DG ADMIN would therefore henceforth clearly invite the service concerned to inform the candidate.

As regards the present case, there had been a malfunctioning of which the Commission had taken note and for which it apologised. The Commission could only regret the inconvenience caused by the way in which the matter had been handled. However, it should be noted that the complainant had been informed by DG ADMIN in an e-mail sent on 3 May 2005 that her application had been rejected. An official reply setting out the reasons for the Commission's decision had been sent to the complainant on 16 June 2005.

The Commission added that the medical examination was carried out by and for the institution. Its results were therefore never passed on to any other person. However, the Commission stressed that the complainant had the possibility of obtaining access to these results by contacting the doctor of the institution that had handled the examination. It further noted that if the results of the medical examination were outside the normal limits, the candidate was obviously always informed. In the present case, however, the complainant had been declared apt for serving by the Commission's medical service.

3.3 In her observations, the complainant did not make any specific comments on these aspects of her complaint apart from stressing that since the relevant form concerning the medical examination had asked for the address of her doctor to be indicated, she had assumed that the results would be transmitted to this doctor.

3.4 The Ombudsman notes that DG ADMIN informed DG SCIC by note of 24 June 2004 that it was not possible to offer the relevant post to the complainant. However, the Commission nevertheless omitted to inform the complainant accordingly. Even though the recruitment procedure had been started by DG SCIC, and not by an application, it is clear that the complainant ought to have been informed. The complainant had been invited to a medical examination with a view to her possible recruitment. Principles of good administration therefore required the Commission to inform her, in good time, of the result of this procedure.

3.5 The complainant has submitted that on 22 March 2005, she contacted the person in charge at the Commission by telephone who promised to look into the matter and to return to her by 4 April 2005 at the latest. On 11 April 2005, and in the absence of a reply, the complainant sent an e-mail asking for clarifications. The Commission has not disputed these statements. However, it was only in an e-mail sent by DG ADMIN on 3 May 2005 that the complainant was informed of the fact that it had not been considered possible to offer her the post. It then took nearly six further weeks before DG SCIC informed the complainant of the reasons for this decision.

3.6 The Ombudsman takes the view that the Commission has thus clearly failed to inform the complainant of its decision and the reasons therefore in good time. However, the Ombudsman notes that the Commission has acknowledged that t here had been a malfunctioning and has apologised for it. He further notes that the Commission has committed itself to reminding its services that it was their duty to inform candidates who did not fulfil the conditions for recruitment. In these circumstances, the Ombudsman considers that there are no grounds for further inquiries into this aspect of the complaint.

3.7 As regards the results of the medical examination, the Ombudsman notes that the Commission has made it clear that the complainant is entitled to receive these results upon request. This approach appears to be reasonable. The fact that the relevant form appears to have asked for the address of the complainant's doctor to be indicated does not mean that the Commission committed itself to sending the results of the examination to this doctor of its own motion. No maladministration is therefore found as regards this aspect of the case.

4 As regards the alleged defects of the procedure

4.1 The complainant alleged that the procedure followed by DG ADMIN had been inadequate and devoid of all logic. DG ADMIN should not have invited her to the medical examination without first checking the documents in its possession.

4.2 In its additional opinion, the Commission argued that it was usual practice to invite candidates for the medical examination and for a visit to DG ADMIN the same day, in order to save both travel expenses and candidates' time. In the Commission's view, this approach was perfectly logical from a budgetary point of view and as regards efficiency. In its reply to a question for further information on this issue, the Commission submitted that the procedures for the recruitment of officials and temporary agents were adapted to the multitude of cases that arose and therefore had to be standardised. The Commission argued that its services were not in a position to proceed to a detailed, preliminary examination of a file at a stage where the recruitment was not yet imminent.

4.3 In her observations, the complainant stressed that she had submitted her application at the request of DG SCIC and that this application concerned a post requiring a specific profile. The Commission's argument that DG ADMIN had been unable to carry out an advance check of her documents, given that such an approach was not possible in the context of a multitude of applications, was thus without foundation in her view.

4.4 The Ombudsman considers that a service-minded administration should take care to avoid causing citizens to waste their time unnecessarily.

4.5 Given that recruitment procedures can involve hundreds or even thousands of candidates, the Ombudsman fully understands that it is not always possible or even appropriate to check the eligibility of candidates at the very outset. The Ombudsman notes, for instance, that notices of competitions for the recruitment of staff nowadays regularly inform candidates that the eligibility of candidates will only be examined at a later stage, normally after the results of the preselection tests are known.

4.6 However, the present case cannot be compared to competitions involving a multitude of candidates. The complainant was the only person who had been proposed for the relevant post. It should also be noted that the complainant had already worked for the Commission. DG ADMIN thus already possessed a file concerning this candidate. Furthermore, DG SCIC had asked DG ADMIN to proceed to the recruitment of the complainant already in January 2004, more than three months before the medical examination took place. In its note of 24 June 2004 to DG SCIC - which was cited in DG SCIC's letter to the complainant of 16 June 2005 - DG ADMIN noted that the handling of the request made by DG SCIC had had to be postponed until the announcement of new provisions concerning the recruitment of temporary agents on 24 March 2004. DG ADMIN added that the announcement of these new provisions had allowed to "unblock" the case. The Ombudsman notes that nearly a month passed after that date before the complainant was invited to the medical examination and to report to DG ADMIN. Another two weeks passed before the medical examination was carried out. The Commission's services thus had more than enough time to familiarise themselves with any new approach that might have been adopted. In the above circumstances, the Ombudsman considers that it could have been expected of a service-minded administration to check the eligibility of the complainant's application and not ask the complainant to undergo a medical examination in case her application was considered to be ineligible. The Commission's failure to act accordingly constitutes an instance of maladministration. A critical remark will be made in this context.

5 As regards the alleged discrimination

5.1 In her complaint, the complainant alleged that there had been discrimination. In her observations on the Commission's opinion, she added that she considered there to have been discrimination on the grounds of age, given that for persons of her age the situation that had prevailed at the time was completely disregarded and that the selection criteria were only based on the modern, widely harmonised educations in Europe. Young candidates were thus automatically favoured compared to older candidates.

5.2 In its opinion, the Commission in substance took the view that there was no discrimination.

5.3 The Ombudsman considers that his inquiry has not shown any elements that would allow the conclusion that the Commission's decision not to recruit the complainant constituted a case of discrimination that could constitute maladministration. It is true that as a result of the reform of the rules governing the staff of the Communities(5) that took effect on 1 May 2004, the educational requirements for recruitment in function group AST (former categories B and C) had been newly defined. It further appears that this change resulted in the adoption of criteria making higher demands on the qualification of candidates than was the case previously. However, any possible disadvantage that this change may cause to certain candidates would, as long as the new provisions are correctly applied, be due to the decision of the legislator.

5.4 In view of the above, no maladministration is found as regards this aspect of the complaint.

5.5 The Ombudsman notes that the complainant only appears to attack the Commission's decision not to recruit her to the extent that it constitutes (in her view) discrimination. In its opinions, the Commission made a number of comments also as regards the substance of its decision, arguing that this decision had been in conformity with the Staff Regulations and with its internal rules. Given that the complainant has not submitted any specific allegations in this context, the Ombudsman considers that it would not be appropriate to examine this argument in the present inquiry. However, on the basis of the information supplied by the Commission during the course of the inquiry, the Ombudsman finds that there remains doubt as to what the Commission's actual position is as regards the possibility to rely on Article 5(3) (a) (iii) of the Staff Regulations in relation to the recruitment of temporary agents under Article 2(b) of the Conditions of Employment. A further remark will be made in this regard.

6 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 avoid causing citizens to waste their time unnecessarily. The Ombudsman fully understands that in competitions involving hundreds or thousands of candidates it is not always possible or even appropriate to check the eligibility of candidates at the very outset. However, the present case cannot be compared to competitions involving a multitude of candidates. The complainant was the only person who had been proposed for the relevant post. It should also be noted that the complainant had already worked for the Commission. DG ADMIN thus already possessed a file concerning this candidate. Furthermore, DG SCIC had asked DG ADMIN to proceed to the recruitment of the complainant already in January 2004, more than three months before the medical examination took place. Even if the handling of the request made by DG SCIC had had to be postponed until the announcement of new provisions concerning the recruitment of temporary agents on 24 March 2004, it had to be noted that nearly a month passed after that date before the complainant was invited to the medical examination and that another two weeks passed before the medical examination was carried out. The Commission's services thus had more than enough time to familiarise themselves with any new approach that might have been adopted. In these circumstances, the Ombudsman considers that it could have been expected of a service-minded administration to check the eligibility of the complainant's application and not to ask the complainant to undergo a medical examination in case her application was considered to be ineligible. The Commission's failure to act accordingly constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past and that the complainant has explicitly asked the Ombudsman to close his inquiry, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

FURTHER REMARKS

On the basis of the information supplied by the Commission during the course of the inquiry, the Ombudsman finds that there remains doubt as to what the Commission's actual position is as regards the possibility to rely on Article 5(3) (a) (iii) of the Staff Regulations in relation to the recruitment of temporary agents under Article 2(b) of the Conditions of Employment.

Given that the Commission's approach concerning this issue potentially affects a large number of persons, the Ombudsman will therefore open an own-initiative inquiry to clarify matters.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).

(2) Article 2(b) of the Conditions of Employment refers to "staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution".

(3) Article 2(d) of the Conditions of Employment refers to "staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget of the institution concerned".

(4) See, in particular, Case 143/82 Lipman v Commission [1983] ECR, p. 1301 paragraph 7.

(5) See Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).