The background to the complaint

1. The complainant participated in Open Competition EPSO/AST/112/10 organised in order to constitute a reserve list from which to recruit assistants (AST3) in a number of fields, among which, Human Resources. The Notice of Competition was published on 16 December 2010[1]. The Guide to Open Competitions, which forms an integral part of the Notice of Competition ('the Guide'), was published on 8 July 2010[2].

2. The complainant was successful in the computer-based admission tests (CBTs) and was then invited to sit for the Assessment Centre tests. On 30 June 2010, she was informed that she had passed the Assessment Centre tests. She submitted to the Selection Board the relevant supporting documents attesting to the university diplomas and professional experience she had mentioned in her initial application.

3. On 12 September 2011, EPSO informed her that, when checking the files of the candidates, the Selection Board found that the documents she submitted as proof of her professional experience did not state the nature of the duties in a clear enough manner for it to be able to assess her work experience. Therefore, it asked the complainant to submit additional documents, namely, evidence of her professional experience during the years 2002-2008. The complainant submitted additional documents on 14 September 2011.

4. On 10 October 2011, EPSO informed her that the Selection Board had examined her application form together with the supporting documents and had decided that she did not have the level of professional experience required by the Notice of Competition. As a result, the Selection Board was unable to place her name on the reserve list (the database of successful candidates).

5. On 13 October 2011, the complainant requested a review of the Selection Board's decision. She asked EPSO to provide her with an explanation of the reasons for that decision. In her e-mail, she recalled that she had submitted (i) references from her current and former employers attesting to the fact that she had the relevant experience; and (ii) tax return forms proving the time she spent as a self-employed worker. In the complainant's view, her overall professional experience was relevant to the nature of the duties outlined in the Notice of Competition.

6. On 1 December 2011, EPSO replied. It stated that the Selection Board had examined the documentation provided by the complainant. The Selection Board agreed with the complainant that she had professional experience of more than 36 months, that is, more than what was required in the Notice of Competition but "it did not feel that all of this experience was strictly related to the HR specialism of this competition." Subsequently, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The complainant alleged that the Selection Board's reasoning for rejecting her request for a review of its decision was flawed.

In his letter opening the inquiry, the Ombudsman pointed out that the rationale put forward by EPSO, namely that the required 36 months of the complainant's professional experience were not all "strictly related to the HR specialism of [the] competition", appeared to apply a stricter condition than those set out in the Notice of Competition.

8. The complainant claimed that the EPSO should intervene with the Selection Board as regards the latter's assessment of the complainant's professional experience in order for the complainant to be placed on the reserve list.

The inquiry

9. On 17 January 2012, the Ombudsman asked EPSO for an opinion on the complainant's allegation and claim.

10. On 31 May 2012, EPSO submitted its opinion in English. The translation of the opinion into Polish was forwarded to the complainant for observations which she sent on 31 July 2012. On 27 September 2012, the Ombudsman asked EPSO further questions. EPSO replied on 30 October 2012, and on 7 December 2012, it provided the Polish translation of that reply. On 11 December 2012, the Ombudsman forwarded the translation to the complainant and asked her to submit observations by 31 January 2013 but she did not send any. In addition, on 12 November 2012, the Ombudsman's services carried out an inspection of EPSO's documents[3] in the file. The report on this inspection was sent to the complainant and to EPSO on 5 December 2012.

The Ombudsman's analysis and conclusions

A. Alleged flawed reasoning for the Selection Board's decision

Arguments presented to the Ombudsman

11. The complainant pointed out that, according to the Notice of Competition, assistants in the field of Human Resources are expected to carry out the following duties performed under the authority of an administrator: "assistance and support duties, using IT tools, relating in particular to personnel policy management in areas such as recruitment, careers, training and equal opportunities". Other duties could include: "managing and following up matters relating to personnel policy management, in particular recruitment, careers, professional training, equal opportunities, individual and financial rights; drafting notes and/or correspondence, drawing up administrative reports relating to the fields indicated above; preparing, holding and following up on meetings; managing projects; analysing and developing working methods; assisting with the implementation of accounting, financial, statistical and IT systems etc.; managing a team." The Notice also specified that "[t]he duties call for good drafting skills (drafting memoranda, reports etc.), a keen sense of human relations, the capacity to be a good listener and the capacity to adjust to work in a multicultural environment." The complainant referred to all her previous occupations and explained what her duties involved. She argued that her duties corresponded to those mentioned in the Notice of Competition and therefore the Selection Board was wrong to consider otherwise.

12. The complainant subsequently informed the Ombudsman that, on 4 January 2012, she submitted an appeal under Article 90(2) of the Staff Regulations and that EPSO replied to her on 21 June 2012. In that reply, EPSO stated that "while the Board had accepted that [the complainant] had more than 36 months of professional experience in total, it had considered that [her] supporting documents did not allow the conclusion that [her] abovementioned work experience included the required minimum of 36 months directly related to the HR specialism of this competition." She understood from that reply that her application was rejected because of the nature of the documents she submitted as proof of her professional experience.

13. While the complainant accepted, in sum, that EPSO's reply to her appeal under Article 90(2) of the Staff Regulations provided her with a better explanation of the Selection Board's decision than that given in its earlier correspondence, she pointed to certain inconsistencies in the Selection Board's explanation. She understood from EPSO's reply that the Selection Board did not accept the certificates and tax declarations she provided as proof of her professional experience as a self-employed worker/freelancer for the period 1 October 2002 to 1 October 2008 because she should instead have submitted an "invoice or order form as referred in point 2.2.4.3 paragraph 2 of the Guide to Open Competition." However, the complainant noted that the Guide indicates that self-employed candidates may prove their professional experience by means of invoices or order forms detailing the work performed, "or [by submitting] any other relevant official supporting documents."

14. In reply to the Ombudsman's further question concerning these observations of the complainant, EPSO stated that the Selection Board checked very carefully all the documents she provided. EPSO then quoted the Selection Board's conclusions concerning the complainant's professional experience, to which it had referred in its reply to the complainant's appeal under Article 90(2) of the Staff Regulations. Those conclusions made detailed reference to each period of the complainant's professional experience and the relevant supporting documents and spelt out the reasons why the relevant period was or was not accepted. For instance, the complainant's traineeship (between 6 April and 29 December 2006) was not accepted because her main duties (front office and intercultural mediator) were not considered sufficiently relevant to the duties described in the Notice of Competition. Similarly, her professional experience as a university lecturer and researcher at the Institute of Psychology of a Polish University was not taken into account because it related to teaching, researching and librarian duties which the Selection Board did not consider relevant to the duties described in the Notice of Competition. The complainant's professional experience during her studies could not be taken into account either because it was acquired before the complainant graduated.

15. In addition, EPSO stated that the Selection Board recalled that, for the period 1 October 2002 to 1 October 2008, the complainant listed a number of professional activities as a self-employed worker and/or as a freelancer. In support of this list of activities, she submitted certificates and tax declarations but she was not able to provide invoices or order forms as referred to in the Guide. For instance, in two of the certificates provided, there was no mention of the number of days and hours spent performing the relevant activity and the third certificate proved only one month and half of professional experience. EPSO argued that it is not true that the Selection Board did not accept certificates and tax declarations. The certificates and tax declarations submitted by the complainant allowed the Selection Board to establish that the complainant worked in exchange for wages but they were not sufficient to determine the exact length of time she spent working between 1 October 2002 and 1 October 2008. This was so because these tax declarations and certificates did not contain any specific reference to the days and months the complainant effectively worked in areas relevant to the competition. This is the only reason why it would have been better - in the interest of the complainant herself - to submit invoices or orders forms as referred to in the Guide.

The Ombudsman's assessment

16. The Ombudsman considers that, in its reply to his further inquiries and in its reply to the complainant's appeal under Article 90(2) of the Staff Regulations, EPSO provided an exhaustive explanation for the Selection Board's decision that the complainant's supporting documents did not constitute adequate proof of the required minimum professional experience in the relevant field. EPSO also correctly replied to the complainant's concerns expressed in her observations that the Selection Board's decision on her supporting documents might have been inconsistent with what was mentioned in the Guide. Since the complainant has chosen not to comment on EPSO's further reply, the Ombudsman understands that she is also satisfied with the explanation which EPSO provided therein.

17. However, the Ombudsman regrets that EPSO did not provide a proper statement of reasons for the Selection Board's decision, to the complainant on 1 December 2011, when it replied to the complainant's request for a review of that decision. To do so would have been in the interest of administrative efficiency, since the complainant would most probably not then have felt the need to submit a complaint to the Ombudsman and lodge an appeal under Article 90(2) of the Staff Regulations. Moreover, it would have been in line with a culture of service to citizens.

18. In this respect, the Ombudsman emphasises the potential value of an effective internal review mechanism of the administrative decisions taken by selection boards, which should help to avoid resort to the cumbersome appeal procedure under Article 90(2) of the Staff Regulations. Moreover, such an internal review mechanism would enable the Ombudsman to assess whether there are grounds for him to open an inquiry if the candidate is still dissatisfied.

19. The Ombudsman therefore considers that it would be good administration for EPSO to do its utmost to ensure that candidates who are dissatisfied with decisions of selection boards have access to an effective internal review procedure, which provides adequate and clear reasons for its conclusions.

20. In the present case, the Ombudsman's inspection of documents did not reveal that at the stage of the review procedure, EPSO took any steps whatsoever to obtain from the Selection Board a clear explanation for its decision. However, that inspection also showed that EPSO redressed the Selection Board's failure to provide a clear explanation and, when it dealt with the complainant's Article 90(2) complaint, it was able to obtain sufficient information from the Selection Board to enable it to provide the complainant with an exhaustive explanation for the latter's decision.

21. In light of his findings in points 16 and 20 above, the Ombudsman considers that further inquiries into the allegation are not justified. He will, however, make a further remark below.

B. Claim that EPSO should intervene with the Selection Board

Arguments presented to the Ombudsman and the Ombudsman's further letter to EPSO

22. In its opinion on the complaint, EPSO stated that it "wishes to express its surprise at the fact that the Ombudsman has decided to open an inquiry". It stated further that it "would like to respectfully recall the definition of maladministration offered by the Ombudsman in his most recent annual report: 'Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it'". EPSO took the view that the complainant's claim does not come within the above definition of maladministration.

23. EPSO recalled the relevant case-law establishing that selection boards enjoy wide powers of discretion in determining whether the academic qualifications, professional experience and corresponding supporting documents of a candidate correspond to the level required by the Staff Regulations and the competition notice. According to case law, in order to guarantee the objectivity of their decisions, selection boards must conduct their proceedings without any external interference or pressure, whether from the EU administration, the candidates or third parties. Given the independence of selection boards, it is not possible for EPSO to intervene with the Selection Board as regards the latter's assessment of the complainant's professional experience.

24. In her observations on that reply, the complainant emphasised that she did not submit her complaint to the Ombudsman in order to challenge the competences of the Selection Board but in order to understand better the reasons for the Selection's Board's decision that her professional experience was not adequate.

25. In his further letter to EPSO, the Ombudsman pointed out that he opened his inquiry because the reasoning given by the Selection Board raised a question of legality, namely, whether the Selection Board applied different and stricter conditions than those laid down in the Notice of Competition (point 7 above). In this respect, the Ombudsman recalled the statement contained in the document EPSO had forwarded to the Ombudsman on 16 January 2006, in the framework of the Ombudsman's own-initiative inquiry OI/5/2005/PB: "The appointing authority does not, in principle, have the power to overturn or amend the decisions of a Selection Board. Only the Tribunal may do so. However if the Selection Board takes a decision which is manifestly and seriously wrong in law, the appointing authority may intervene since it cannot be bound by Selection Board decisions which, being unlawful, could affect its own decisions." The Ombudsman then asked EPSO to explain how it reconciles its statement quoted above with that contained in its opinion on the present complaint to the effect that the case does not raise an issue of maladministration.

26. In its reply, EPSO emphasised that its statement quoted above was made more than six years ago. In its view, it was formulated in an imprecise manner and could therefore be misleading. EPSO thus sought to clarify the statement. It pointed out that, in the context of examining an administrative complaint lodged by a candidate against the selection board's decision, the Director of EPSO, in his capacity as Appointing Authority, must limit his intervention to verifying whether the selection board has respected its procedural rules and the Notice of Competition and whether it has committed a manifest error of assessment. In fact, in accordance with established case-law based on the principle of the independence of selection boards, the Appointing Authority has no power to annul or amend a selection board's decision. Nevertheless, in the exercise of its own powers, the Appointing Authority is required to take decisions untainted by errors of law. It cannot therefore be bound by decisions of selection boards whose unlawfulness could, as a consequence, vitiate its own decisions. This is the reason why the Appointing Authority is required to verify the legality of decisions taken by the selection board as regards, in particular, allowing candidates to take part in a competition. Where the selection board has wrongly allowed a candidate to take part in a competition and put his name on the reserve list, the Appointing Authority must express its refusal to appoint a candidate by way of a reasoned decision which may be subject to the Court's review[4].

27. EPSO concluded that the expression "intervene ... should therefore be understood as referring to the possibility for the Appointing Authority to adopt a reasoned decision whereby it qualifies the selection board's decision as legally flawed. However, the adoption of such a decision by the Appointing Authority does not have the effect to amend or cancel the Selection Board decision in question."

The Ombudsman's assessment

28. The Ombudsman accepts EPSO's clarification of the situations in which EPSO may intervene and what this intervention means. The Ombudsman also understands that, on the basis of this clarification, EPSO will not, in future, question the Ombudsman's competence to deal with complaints in which complainants challenge the legality of selection boards' decisions and claim that EPSO should intervene. The Ombudsman encourages EPSO not to delay its possible intervention until a complaint is made, but to intervene at the stage of an administrative review if grounds exist to do so. The Ombudsman will make a second further remark accordingly.

29. In light of his findings in point 16 above, the Ombudsman concludes that the statement of reasons for the selection board's decision in question shows that, without a doubt, there was no substantive defect in that decision. For this reason, the claim cannot be sustained.

C. Conclusions

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

No further inquiries into the allegation are justified and the claim cannot be sustained.

The complainant and EPSO will be informed of this decision.

Further remarks

The Ombudsman encourages EPSO to do its utmost to ensure that candidates who are dissatisfied with decisions of selection boards have access to an effective internal review procedure, which provides adequate and clear reasons for its conclusions.

The Ombudsman encourages EPSO to take appropriate action at the stage of the internal review procedure if a selection board's decision is legally flawed.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 19 June 2013

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[1] OJ 2010 C 341 A, p. 1.

[2] OJ 2010 C 184 A, p. 1.

[3] The inspection covered documents which EPSO classified as confidential. In accordance with Article 4(1) of the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom, OJ 1994 L 113, p. 15) and the implementing provisions adopted by the Ombudsman which were last amended on 3 December 2008, neither the complainant nor the public have access to confidential documents obtained by the Ombudsman's services during an inspection.

[4] Case 142/85 Schwiering v Court of Auditors [1986] ECR 3177.