Strasbourg, 25 June 2007

Dear Ms D.,

On 5 May 2006, you made a complaint to the European Ombudsman against the European Parliament. Your complaint concerned the selection by Parliament of candidates from a core group of potential contractual agents. The selected candidates would go on to sit tests/interviews organised by Parliament. The selection of the core group was carried out by the European Personnel Selection Office ("EPSO") on behalf of the European institutions, including Parliament.

On 17 May 2006, you sent additional documents concerning your complaint.

On 22 June 2006, I forwarded the complaint to the President of Parliament. I also informed EPSO of your complaint in case it might wish to comment on your complaint.

On 6 September 2006, Parliament sent an opinion on your complaint. On 11 September 2006, EPSO also sent an opinion on your complaint.

On 8 and 18 September 2006, I forwarded to you Parliament's and EPSO's opinions with an invitation to make observations.

On 30 October 2006, you sent me your observations.

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

THE COMPLAINT

On 8 March 2005, the complainant submitted her application for the post of assistant/staff file manager following a call for expression of interest to select a first group of Bulgarian-language and Romanian-language staff ("the Call"). The Call was carried out by the European Personnel Selection Office ("EPSO") on behalf of the European institutions, including Parliament. The Call was used to constitute a database of potential contractual agents, from which the institutions would select candidates for further interviews/tests.

The complainant successfully completed her on-line registration. However, the complainant was not invited for the selection tests or interview by Parliament. She believed, however, that she had satisfied the criteria specified in the Call given that, in particular, she has a degree in law from the University of Bucharest; a degree in administrative sciences from a Belgian Haute Ecole; and five years of relevant professional experience.

The complainant also noted that she did not receive any news directly from EPSO as regards her application. Any information she obtained was acquired from the website of EPSO.

On 24 June 2005, the complainant sent an e-mail to EPSO requesting information concerning the status of her application. She also asked to be informed about the criteria used by Parliament to select candidates for further interviews/tests. Parliament's Unit of Internal Organisation replied to the complainant's e-mail on the same day(1). Parliament stated that it had finished the selection process for the first group of contractual agents. Parliament also stated that it intended to select more candidates for further interviews/tests in the near future and that other institutions had also started their selection process. Parliament also stated that EPSO would publish in 2006 notices of open competitions for officials with knowledge of Bulgarian and Romanian. Finally, Parliament pointed out that, as regards the Call, only persons invited for tests/interview would be contacted by Parliament. Given the fact that EPSO received 14 000 applications following the Call, Parliament was unable, therefore, to inform each candidate individually as regards the status of his/her application.

In her complaint to the European Ombudsman, the complainant alleged that the criteria used to choose candidates from the database of candidates for Bulgarian-language and Romanian-language contractual agent positions, established following the Call, were not transparent.

The complainant claimed that Parliament should inform her as regards the criteria to choose candidates from the above database for the post of assistant/staff file manager.

She also claimed that she should be invited for tests or an interview.

THE INQUIRY

Parliament's opinion

Parliament's opinion can be summarised as follows.

First, Parliament referred to the background of the case.

In November 2004, in view of the planned accession of Bulgaria and Romania to the EU, Parliament decided to invite the national parliaments of Bulgaria and Romania to designate observers to take part in Parliament's proceedings once the Accession Treaty was signed. In order to ensure that these observers would be provided with assistance in their work, Parliament decided to recruit the first group of Bulgarian-language and Romanian-language contractual agents. The contractual agents were to begin work as of July 2005.

In February 2005, following Parliament's request, EPSO launched the Call, which concerned a number of posts, including the post of assistant/staff file manager.

The conditions of eligibility were stipulated in point A of the Call. Different stages of the selection of candidates were described in point C of the Call. There were 14 000 applications in response to the Call for the 226 posts available in Parliament's Secretariat-General. There were 254 applications registered for the two posts of assistant/staff file manager.

The pre-selection of candidates was organised in the following way.

DG Personnel of Parliament chose, from the database established by EPSO following the Call, ten candidates for every post available. The choice made was based on who appeared to be the best qualified persons on the database.

Afterwards, two committees of selection, one for the Bulgarian-language candidates, and a second one for the Romanian-language candidates, examined the file of each of the ten candidates.

These committees chose four candidates for each available post. These four candidates were invited to sit tests in Brussels, Bucharest or Sofia. In the case of tests for translators, the candidates sat written tests, whilst, for all other posts, candidates sat oral tests.

The written and oral tests took place in June 2005. Recruitment commenced in July 2005. Almost all the available posts were filled.

Once the recruitment had been completed, Parliament asked EPSO to inform the candidates through EPSO's website that the selection process had been completed. Given the high number of candidates who had applied, that is 14 000 candidates, it was not possible to inform every candidate individually about his/her application.

As regards the complainant's allegations and claims, Parliament stated that the criteria and procedure for the selection of contractual agents are not established in the Conditions of employment of other servants of the European Communities ("the Conditions of Employment").

Article 82(5) of the Conditions of Employment provides that the institutions may ask for EPSO's assistance with a view to the selection of contract staff. The Conditions of Employment do not foresee that the recruitment of contractual agents shall be directed towards securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. By way of contrast, Article 27 of the Staff Regulations, which concerns the recruitment of officials, and Article 12(1) of the Conditions of Employment, which concerns the recruitment of temporary agents, do impose such a requirement. In addition, Parliament's internal rules on recruitment of officials and other agents, which were adopted by Parliament on 3 May 2004, do not foresee any special procedure for the selection of contractual agents and do not determine any criteria for such selection. Therefore, Parliament has a wide margin of discretion as regards the selection of contractual agents. In this respect, Parliament noted that point C of the Call provided that:

"[t]he institutions will search the database to pre-select candidates who best fit their requirements, in particular regarding candidates' education, language skills and relevant professional experience. Only pre-selected candidates will be invited for an interview and/or tests. The content of the interview and/or tests, as well as other needed information, will be communicated to them in their letter of invitation as each Institution may use their own system of selection. Following this stage the best candidates shall be selected (...)."

In accordance with this provision, the pre-selection criteria were published on EPSO's website. However, only the pre-selected candidates who were invited to sit tests or aletrnatively to sit the tests and/or undergo an interview were informed individually as regards the outcome of these tests and/or interviews.

Furthermore, Parliament noted that the eligibility criteria as defined in the Call corresponded to the minimum conditions, as foreseen in Article 82(2)(b)(i) and (c)(i) of the Conditions of Employment, for the recruitment of contractual agents in the function groups II, III and IV to which the announced posts belonged.

Parliament took the view that it was legitimate for Parliament to invite, on the basis of the pre-selection criteria set out in the Call, only a limited number of candidates to sit the tests. In support of this view, Parliament referred to the wide margin of discretion the institutions have when selecting contractual agents and the large number of candidates who were registered in the database following the Call.

The selection committees noted, however, that a large number of candidates had high educational, linguistic and professional skills, and that the number of candidates exceeded the number of vacancies.

The complainant is apparently highly qualified and the level of her studies far exceeds the skills necessary to assume the duties of an assistant/staff file manager. Her legal training and, in particular, her professional experience would qualify her to work as an administrator.

The complainant was not selected for interviews/tests because other applications which complied with the eligibility criteria established in the Call were considered to correspond more closely to the profile of the post of assistant/staff file manager.

Finally, Parliament stated that the open competitions for officials reserved for citizens of Romania and Bulgaria were in the meantime launched by EPSO allowing, without exception, all the persons who complied with the admissibility conditions to take part in these competitions. Parliament would wait for the publication of the reserve lists established following such competitions in order to replace, by summer 2007, its contractual agents with the probationary officials.

Therefore, it did not appear necessary to organise a new selection procedure in order to recruit Bulgarian-language and Romanian-language contractual agents.

EPSO's comments

EPSO's comments can be summarised as follows.

On 24 February 2005, EPSO launched the Call. The database of candidates who registered successfully following the Call was to remain available for two years. The institutions could, during that period, consult the list of candidates on this database in order to carry out selection and recruitment procedures.

As regards the eligibility criteria, the candidates had to be citizens of either Bulgaria or Romania, or of one of the then current Member States of the EU, and be entitled to their full rights as citizens. They had to have a 'thorough' knowledge of Bulgarian or Romanian as their first language, and a 'satisfactory' knowledge of English, German or French as their second language. In addition, they had to fulfil any obligations imposed on them by their national law concerning military service and had to meet the character requirements for the duties involved. As regards those candidates applying for the post of assistant/staff file manager (as was the complainant's case), they needed to have successfully completed a level of post-secondary education attested by a diploma and have at least three years of professional experience relevant for that post.

There were 14 000 candidates included on the database established by EPSO following the Call. The complainant was one of them.

After having established the database, EPSO put the following information on its website: (i) the fact that 14 000 candidates were included in the database, and (ii) a breakdown of candidates' data according to nationality, main language and category and position. EPSO's website also stated that, from the moment of the publication of the database, the European institutions had access to it. They alone were responsible for their own selection procedures. EPSO noted that Parliament foresaw 100 posts for Bulgarian-language candidates, and 100 posts for Romanian-language candidates. The other European institutions considered that they would recruit candidates with knowledge of these languages by the end of 2005 or by the beginning of 2006.

After Parliament had completed the selection process for Bulgarian-language and Romanian-language contractual agents, EPSO, following Parliament's request, stated, on its website, that Parliament had completed its selection of Bulgarian-language and Romanian-language contractual agents from the database, and that there were no more vacancies in Parliament for Bulgarian-language and Romanian-language contractual agents. It noted that, as from July 2005, other European institutions would also have access to the database.

On 24 June 2005, the complainant asked EPSO for additional information concerning the selection of candidates from the database. On the same day, EPSO replied that Parliament had selected the first group of candidates from the database and that these candidates had been invited by Parliament to sit tests(2). EPSO added that Parliament intended to select further groups of staff from the database and that other institutions would also launch procedures for selecting Bulgarian and Romanian staff. EPSO stated that, given the number of candidates who had applied in response to the Call, that is, 14 000 candidates, Parliament was not able to inform every candidate individually about the status of his/her application.

On 23 July 2005, the complainant reiterated her request of 24 June 2005. On 25 July 2005, EPSO replied that Parliament was finalising its recruitment and if she had not yet been contacted by Parliament, this meant that her application was not, as regards recruitment by Parliament, successful. EPSO stated that, if the complainant wished to know why she was not selected from the database, she should directly address Parliament. EPSO added that other institutions were consulting the database established following the Call, with a view to recruiting candidates.

EPSO concluded that the database of candidates was established by EPSO in accordance with the eligibility criteria as specified in the Call. EPSO, through its website, properly informed all the candidates: (i) about all the stages of the pre-selection procedure; (ii) that each institution would apply its own selection criteria; and (iii) that only the candidates selected from the database by the institutions would be invited for an interview and/or tests. Finally, upon Parliament's request, EPSO published the information that Parliament's selection procedure had been completed.

The complainant's observations

In summary, the complainant took the view that Parliament did not accept her application because she was overqualified for the post for which she applied (given that she had a university diploma).

The complainant agreed that Parliament had a wide margin of discretion as regards the selection of candidates, given that the selection criteria for contractual agents are not specified in the Conditions of Employment. However, Parliament should have respected the principle of non-discrimination. By excluding her on the grounds that she had a university diploma, Parliament failed to respect that principle. The complainant referred, in this context, to the case-law of the Court of First Instance (Case T-60/92 Noonan v Commission(3)).

Furthermore, the complainant took the view that, provided she complied with the conditions stipulated in that Call, she had a free choice as regards which post, among those announced in the Call, to apply for.

Moreover, she considered that the conditions of eligibility as stipulated in the Call were only minimum conditions. The complainant also noted that the section "General information" of the Call contained the following information: "This call for expression of interest is designed to identify highly qualified staff (...)."

Moreover, the complainant took the view that there were two kinds of criteria which were applied to the candidates following the Call, namely, secret criteria and public criteria. The criteria used by EPSO to choose candidates for the database, were public since they were in the Call published by EPSO on its website. The criteria applied by the institutions to choose candidates from the database were, however, secret.

The complainant concluded that, while she had been made aware of the criteria applied by Parliament's to choose candidates from the database for the position of assistant/staff file manager only in the course of the Ombudsman's inquiry, other candidates were never, in any way, informed of these criteria concerning the positions for which they applied for.

THE DECISION

1 Preliminary remarks

1.1 In her complaint, the complainant alleged that the criteria used to choose candidates from the database of candidates for Bulgarian and Romanian -language contractual agent positions, established following the Call, were not transparent. She claimed that Parliament should inform her of the criteria used to choose candidates from the above database for the post of assistant/staff file manager and that she should be invited for tests or an interview. In her observations on the opinion of the Parliament, the complainant appears to submit a new allegation that the Parliament discriminated against her by not selecting her because she had a university diploma.

1.2 The Ombudsman considers that broadening the scope of his inquiry to include the new allegation would unduly delay a decision on the original complaint concerning the issue of transparency as regards the criteria used by Parliament to select the candidates from the database. The Ombudsman confines therefore his decision to the complainant's original allegation and claims. The complainant retains however the possibility to make on new complaint to the Ombudsman if she considers it useful to do so.

2 Information about the criteria employed by Parliament to select candidates from the database established by EPSO

2.1 The complainant alleged that the criteria used to select, from the database of candidates for Bulgarian and Romanian-language contractual agent positions established following the Call, candidates who would be appointed as contractual agents, were not transparent.

The complainant claimed that Parliament should inform her of the criteria used to choose candidates from the database for the post of assistant/staff file manager ("first claim").

She also claimed that she should be invited for tests/interviews ("second claim").

2.2 In summary, Parliament noted, in its opinion, that the criteria and the procedure for the selection of contractual agents are not established in the Conditions of employment of other servants of the European Communities ("the Conditions of Employment"). Further, Parliament's internal rules ( "Réglementation interne relative au recrutment des fonctionnaires et autres agents") do not contain any reference to the criteria and the procedure to be used for the selection of contractual agents . Parliament noted that the Conditions of Employment do not foresee that the recruitment of contractual agents shall be directed towards securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. By way of contrast, Article 27 of the Staff Regulations, which concerns the recruitment of officials, and Article 12(1) of the Conditions of Employment, which concerns the recruitment of temporary agents, do impose such a requirement. In addition, Parliament's internal rules on recruitment of officials and other agents, which were adopted by Parliament on 3 May 2004, do not foresee any special procedure for the selection of contractual agents and do not determine any criteria for such selection.

Therefore, according to Parliament, the institution has a wide margin of discretion as regards the selection of contractual agents. In view of that wide margin of discretion, and given the large number of candidates on the database following the Call, it was legitimate for Parliament to invite only a limited number of candidates to sit the selection tests. As regards the basis of the pre-election criteria, Parliament referred to point C of the Call: "The institutions will search the database to pre-select candidates who best fit their requirements, in particular regarding candidates' education, language skills and relevant professional experience (...)". In the case of the post in question (assistant/staff file manager), Parliament selected those applications from the database which complied with the criteria set out in the Call, and which were considered to correspond best to the profile of the post of assistant/staff file manager. Parliament also stated that it does not plan to recruit any more Bulgarian-language and Romanian-language contractual agents.

2.3 In its opinion, EPSO pointed out in summary, that it was only responsible for the first stage of selection, that is, the establishment of the database. In this respect EPSO stated that candidates were chosen for inclusion in that database on the basis of the eligibility conditions stipulated in point A of the Call. The institutions were solely responsible for further stages of the selection procedure including the pre-selection from the database of the candidates who better corresponded to their needs. In this respect, EPSO also referred to point C of the Call.

EPSO also stated that it published on its website all the information that was relevant for the candidates. In particular, it informed the candidates of the eligibility conditions for the database in the Call (point A). It also informed them about the further stages of selection in the Call (point C). Following Parliament's request, EPSO also published, on its website, a statement addressed to all candidates on the database, informing them that Parliament had ended its selection procedure.

2.4 After examining point C of the Call, the Ombudsman understands that the selection procedure comprised the following stages:

1. Validation of the candidates by EPSO and establishment of a database.
2. Pre-selection of the candidates from the database. During this stage the institutions consulted the database and identified the appropriate candidates. Pre-selected candidates might be called for tests/interviews.
3. Final selection of candidates for potential recruitment. During this stage candidates were either invited for interviews or tests, or alternatively for tests and interviews. The best candidates were offered employment as contractual agents.

2.5 The Ombudsman notes that, in her observations, the complainant took the view that the criteria used by EPSO to determine which candidates could be included in the database were transparent.

2.6 The Ombudsman understands therefore that the allegation and claims only concern the criteria used by Parliament to select candidates from the database established by EPSO in accordance with the Call, that is, criteria used in the pre-selection stage.

2.7 As regards the pre-selection of candidates, the Ombudsman notes that point C of the Call states that "the institutions will search the database to pre-select candidates who best fit their requirements, in particular regarding candidates´ education, language skills and relevant professional experience. "(Emphasis added). Point C of the Call thus establishes the criteria which should be employed by the institutions (including Parliament) when "pre-selecting" candidates from the database established by EPSO. The Ombudsman notes that there is no indication that any specific criterion, from amongst the three criteria which, in particular, can be used to determine which candidates best fit an institution's requirements (namely, education, language skills and relevant professional experience), should be accorded greater weight. As regards the "relevant professional experience" criterion, candidates who aspired to the posts of assistant/staff file manager, could have readily understood from the Call that the "relevant" professional experience could relate to professional experience as a file manager.

2.8 From Parliament's statements in its opinion, the Ombudsman understands that, in the absence of specific rules on how to exercise its discretion in the selection of contractual agents, it followed the criteria specified in the Call to pre-select the candidates from the database.

2.9 The criteria in question were therefore known to the complainant since they were included in the Call. The Ombudsman does not therefore find any instance of maladministration as regards the complainant's allegation.

2.10 Furthermore, the Ombudsman notes Parliament's statements, as regards the criteria used to choose candidates for the post of assistant/staff file manager, that "the choice was made based on who appeared to be the best qualified persons on the database" and that "[t]he candidature of the complainant was not pre-selected because other candidatures which complied with the criteria established in the Call (...) were considered to be more adequate for the profile of the post of assistant /staff file manager". Furthermore, the Ombudsman notes that EPSO, quoting the Call, stated that, as regards those candidates applying for the post of assistant/staff file manager (as was the complainant's case), candidates needed to have successfully completed a level of post-secondary education attested by a diploma and have at least three years of professional experience relevant for that post (emphasis added).

In this respect, it appears that the complainant was, in the course of the Ombudsman's inquiry, informed of the Parliament's criteria to choose candidates for the post of assistant/staff file manager. The complainant, in her observations, agreed that this was the case.

The Ombudsman understands that the complainant may disagree with the manner in which these criteria were applied to her candidature, and, in particular, that she is of the opinion that Parliament discriminated against her by not selecting her because she had a university diploma. The Ombudsman has noted, in Section 1 above, that this allegation does not form part of the present inquiry.

2.11 In light of the above, the Ombudsman does not consider that further inquiries are justified as regards the complainant's first claim.

2.12 The Ombudsman notes however that, as was also underlined by the complainant, it appears that other non pre-selected candidates were not informed individually by Parliament as regards the status of their applications. In this respect, the Ombudsman notes EPSO's and Parliament's explanations concerning this point,, that is, that the number of 14 000 candidates in the database made it impossible to inform individually each candidate regarding the status of their applications.

2.13 EPSO's and Parliament's explanation has its merits insofar as contacting all candidates each time some candidates are chosen from the database for the purposes of carrying out tests and/or interviews, would place a disproportionate burden on the institution. The Ombudsman considers, however, that it would be in the interests of good relations with citizens, as well as in conformity with principles of good administrative behaviour, for the institutions (including Parliament) and/or EPSO, in future selection procedures of a similar nature, to thank each candidate individually for his/her participation in a Call and inform him/her of the reasons why he/she was not selected by the institutions. It could be appropriate for such individual communication to occur once the various institutions that make use of the relevant database have completed their selection procedures.

In this respect, the Ombudsman will make a first further remark below.

2.14 As regards the complainant's second claim that she should be invited for tests/interviews, the Ombudsman understands that the complainant referred to the selection of Romanian-language contractual agents.

2.15 The Ombudsman notes therefore that Parliament explained why it did not consider it useful to organise further selections for Bulgarian or Romanian-language contractual agents.

2.16 In light of the above, the Ombudsman does not consider that further inquiries are justified as regards the complainant's second claim.

2.17 Notwithstanding the conclusion made in Points 2.9, 2.11 and 2.16 above, the Ombudsman considers it necessary to clarify his understanding of a number of statements made by Parliament. In its opinion, Parliament noted that the criteria and the procedure for the selection of contractual agents are not established in the Conditions of employment of other servants of the European Communities ("the Conditions of Employment"). Further, it noted that Parliament's internal rules ( "Réglementation interne relative au recrutment des fonctionnaires et autres agents") do not contain any reference to the criteria and the procedure of selection of contractual agents. It also noted that the Conditions of Employment do not foresee that the recruitment of contractual agents shall be directed towards securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. In addition, it pointed out that its internal rules on recruitment of officials and other agents, which were adopted by Parliament on 3 May 2004, do not foresee any special procedure for the selection of contractual agents and do not determine any criteria for such selection. Parliament went on to state that it has a wide margin of discretion as regards the selection of contractual agents. In view of that wide margin of discretion, and given the large number of candidates on the database following the Call, it was legitimate for Parliament to invite only a limited number of candidates to sit the selection tests. In the Ombudsman view, however, even if it were the case that no specific rules require Parliament to recruit contractual agents of the highest standard of ability, efficiency and integrity, principles of good administration, which Parliament is bound to respect, do require that such recruitment is carried out in accordance with objective criteria, which would include recruiting contractual agents of the highest standard of ability, efficiency and integrity.

The Ombudsman notes that, in the case at hand, Parliament states that, in exercising its margin of discretion, it did actually follow point C of the Call. In sum, it pre-selected candidates "who best fit [its] needs, in particular regarding candidates' education, language skills and relevant professional experience (...)". In this context, the Ombudsman understands that, in the case at hand, the recruitment was carried out in accordance with objective criteria. However, with a view to assisting Parliament in similar situations which might arise in the future, the Ombudsman will make a second further remark.

3 Conclusion

As regards the complainant's allegation, the Ombudsman does not find any instance of maladministration by Parliament or EPSO.

The Ombudsman considers that further inquiries are not justified as regards the complainant's first and second claim.

The Ombudsman therefore closes the case.

FURTHER REMARKS

1. The Ombudsman considers that it would be in the interests of good relations with citizens, as well as in conformity with principles of good administrative behaviour, for the institutions (including Parliament) and/or EPSO, in future selection procedures of a similar nature, to thank each candidate individually for his/her participation in a Call and inform him/her of the reasons why he/she was not selected by the institutions. It could be appropriate for such individual communication to occur once the various institutions that make use of the relevant database have completed their selection procedures.
2. In the Ombudsman's view, even if it is the case that no specific rules require Parliament to recruit contractual agents of the highest standard of ability, efficiency and integrity, principles of good administration, which Parliament is bound to respect, do require that such recruitment is carried out in accordance with objective criteria, which would include recruiting contractual agents of the highest standard of ability, efficiency and integrity.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The complainant attached a copy of that reply to her complaint.

(2) On the basis of the documents submitted by the complainant it appears however that she received the reply from Parliament.

(3) Case T-60/92 Noonan v Commission [1996] ECR II-215.