# Decision of the European Ombudsman on complaint 172/2003/IP against the European Commission - Autors: Eiropas ombuds - Datums: 2003-12-22T00:00+01:00[Europe/Paris] - [URL](https://www.ombudsman.europa.eu/lv/decision/lv/1848) --- Strasbourg, 22 December 2003 Dear Mr F., On 18 January 2003, you made a complaint to the European Ombudsman against the European Commission concerning the Commission's handling of your application for a post of Seconded National Expert. On 19 February 2003, the Ombudsman forwarded the complaint to the President of the Commission. The Commission sent its opinion on 2 May 2003 and I forwarded it to you with an invitation to make observations, if you so wished. You sent your observations on 24 June 2003. On 10 November 2003, I wrote to the Commission in order to ask for access to its file. The inspection of the file was carried out on 25 November 2003. A copy of the report on this inspection was sent to you and to the Commission on 1 December 2003. I am writing now to let you know the results of the inquiries that have been made. THE COMPLAINT ------------- According to the complainant, the relevant facts are as follows: In September 2001, the Directorate General Internal Market (hereinafter DG MARKT) of the European Commission circulated to the Commission's Permanent Representations in the Member States four notices of vacancy for posts of Seconded National Experts (hereinafter SNE) in four separate Units. The complainant applied for the post available in Unit D/1, "Free Movement of Goods". By letter of 16 January 2002, the complainant was informed that his application had not been successful. The letter stated that *"we have circulated your CV within the DG but I regret to inform you that your application has not been successful. However, your details will be kept on file for one year"*. On 11 February 2002, the complainant wrote to the Commission and asked the institution: *(i)* to give him reasons for its decision not to select his application; *(ii)* to communicate the name of the selected candidate and *(iii)* to give him access to a copy of any related document. In its reply of 13 March 2002, the Commission stated that the letter sent on 16 January 2002 had been a holding letter sent to inform applicants that their data would be kept for a year. The institution pointed out that no selection had been carried out at that moment and that, due to an internal restructuring of the services concerned, it was not sure that the post of SNE would be filled shortly. Furthermore, the Commission stated that the publication of a post is not binding for the institution that can decide not to fill the post. On 2 April 2002, the complainant wrote a further letter to the Commission. He pointed out that the letter of 16 January 2002 clearly stated that his application had not been successful. In the complainant's view, this meant that a selection procedure had been carried out. Furthermore, he took the view that the Commission should have informed candidates of any decision taken in the framework of the relevant procedure. In its reply of 8 May 2002, the Commission repeated the points made in its letter of 13 March 2002. In its letter of 4 September 2002, in reply to a further letter from the complainant of 18 June 2002, the Commission stated that: *(i)* for the post in Unit D/1 three applications had been received, including the complainant's; *(ii)* following a change in DG MARKT's internal structure and reconsideration of the allocation of human resources, it had been decided not to proceed to the filling of the post of SNE in Unit D/1; *(iii)* no SNE had been recruited by DG MARKT following the notice of vacancy in question; *(iv)* since there was no written decision about the decision not to fill the post, it was not possible to give the complainant access to such a document requested in his letter of 11 February 2002. Furthermore, DG MARKT regretted that the letter sent to applicants in January 2002 had been a standard letter normally sent to inform candidates that their application has been rejected. In the present case, it would have been preferable to explain that the Commission had decided not to fill the post and give reasons therefore. In his complaint to the Ombudsman, the complainant alleged that the European Commission had failed to follow principles of good administration when sending him the letter of 16 January 2002, because the information therein was incorrect. Furthermore, the Commission did not grant access to the documents related to the Commission's decision not to fill the post of SNE. The complainant also claimed a compensation of 100.000 € for the material and moral damage he alleged to have suffered. THE INQUIRY ----------- **The European Commission's opinion** In its opinion, the Commission recalled the factual background of the complaint and made the following points: The complainant was one of the three applicants who had applied for a post of SND following the publication of a vacancy in September 2001 by DG MARKT. All candidates who applied for the post had been informed through a standard letter that their candidature had not been successful. The Commission accepted that the information given in this letter was misleading for the complainant, who could have concluded that another candidate had been selected. However, in its letter of 13 March 2002, in reply to the complainant's letter of 11 February 2002, the Commission's services had provided the complainant with a detailed explanation concerning the decision not to fill the post of SNE. The complainant wrote a further letter on 2 April 2002, in which he stated that the advertisement of vacancy had created legitimate expectations to be chosen for the post. He also stated that he had been informed that another candidate had been appointed. He therefore asked again to have access to the documents related to the decision not to fill the post of SNE. On 8 May 2002, the Commission's responsible services replied to the complainant and confirmed the content of the letter of 13 March 2002. Furthermore, they added that the Commission could not be bound by the publication of a vacancy. On 18 June 2002, the complainant made a complaint to the Commission under the Code of Good Administrative Behaviour, which was acknowledged by the Secretary General and registered under reference number A/330162. The Director General of DG MARKT replied to this complaint on 4 September 2002. He confirmed the information given in the letter of 13 March 2002 and pointed out that no SNE had been recruited in Unit D/1 of DG MARKT following the notice of vacancy of September 2001. The Director General apologised again for the fact that the complainant had only received a standard letter informing him that his application had not been successful. However, he also underlined that the information that the complainant's data would be kept in the data base of DG MARKT was correct. By letter of 7 October 2002, the complainant appealed against the reply to his complaint (A/330162) and made a request for access to certain documents. In his reply of 12 November 2002, the Secretary General of the Commission stated that, although he could accept that some deficiencies had occurred in the handling of the concerned procedure, they had been rectified by the explanation given to the complainant later on. On 15 November 2002, DG MARKT provided the complainant with the following documents: a copy of a note from Mr M., Director General of DG MARKT, to Mr R., Director General of Directorate General Administration (DG ADMIN), of 24 October 2001, concerning the change in DG MARKT's structure which resulted in the merging of Unit D/1 and D/2; a copy of a note from DG ADMIN to DG MARKT of 19 November 2001, transmitting the three applications for the post of SNE in Unit D/1 and anonymised copies of the letters to the two other candidates for the SNE post, identical to that sent to the complainant on 16 January 2002. As a general comment, the Commission accepted that the reply given to the complainant on 16 January 2002 failed to give the complainant a full and accurate account of the reasons why he had not been selected. The Commission had apologised already in its letter of 13 March 2002. Nevertheless, it underlined that the publication of a SNE vacancy cannot create a legitimate expectation on the part of applicants that they will be appointed. SNEs are funded from Budget line A-7003. Each Directorate General is allocated a budgetary envelope which it manages in a decentralised manner. Decisions to create or to transfer SNE posts do not require any particular formality. The decision to recruit a SNE is normally taken on the basis of a request from the DG in question to Directorate General for Personnel and Administration. In this particular case, since it was decided not to proceed to the recruitment, such a request was not made. Finally, the Commission stated that, as regards the registration number on the letters sent to unsuccessful candidates for the post of SNE on 16 January 2002, it was unable to explain the existence of an identical registration number (238) for two of them. According to the Commission, the most probable explanation was that two of the letters were presented for signature in the same file and the third (with registration number 240) in a separate one. **The complainant's observations** In his observations, the complainant basically maintained his complaint. Furthermore, he pointed out that it was unacceptable that the Commission had not been able to give a reasonable explanation of the reason why two of the letters sent to the unsuccessful candidates on 16 January 2002 had the same registration number and the third one had a different number. The complainant took the view that this could be explained by the fact that the content of the letters was not the same. He repeated the allegations he had made in his complaint and maintained his claim for compensation. **Further inquiries** After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. By letter of 10 November 2003, the Ombudsman therefore asked the Commission to grant him access to its file. On 25 November 2003, the Ombudsman's services inspected the Commission's file. The Commission's file contained relevant documents relating to the modification of DG MARKT's organisation chart, documents relating to SNE posts in DG MARKT, the internal correspondence related to the case among different Commission services and the correspondence between the Commission and the complainant. Although they were not in the file, the Commission's services provided the Ombudsman's services with a list of SNE posts since the year 2000. From this list, it appeared that no SNE had been recruited in unit D/1. The Ombudsman's services also received a copy of all outgoing letters from DG MARKT of 16 January 2002, with registration numbers 238,239,240. As regards these documents, which according to the Commission's request, should be considered as being confidential, the representatives of the Commission explained that if several outgoing letters are based on the same standard letter with the same wording, the same registration number is used for all those letters. However, a "gap" in the registration numbers as regards correspondence from one unit, or even from one official, may occur. The reason for this is that the whole DG uses the same ADONIS system, that is to say the same system of registration numbers. This means that whenever someone registers an outgoing letter, the number next in line is taken. THE DECISION ------------ **1 The Commission's handling of the complainant's application** 1.1 The complainant applied for a post of Seconded National Expert in DG MARKT, Unit D/1 "Free Movements of Goods", following a notice of vacancy published by DG MARKT and circulated to the Commission's Permanent Representations in September 2001. By letter of 16 January 2002, he was informed that his application had not been successful. In his complaint, the complainant alleged that the European Commission had failed to follow principles of good administration when sending him the letter of 16 January 2002, because the information therein was incorrect. 1.2 In its opinion, the Commission accepted that the information given in the letter of 16 January 2002 had been misleading and that this letter could have led the complainant to think that another candidate had been selected to occupy the post of SND. 1.3 Principles of good administration require that the institutions should give clear and precise reasons for their decisions. As regards the present case, the Commission accepted that its letter of 16 January 2002 was misleading for the complainant. However, the Ombudsman notes that in the letter of 4 September 2002 and then in its opinion to the Ombudsman, the Commission explained to the complainant the reasons why it had been decided not to fill the post of SNE and apologised for the misleading letter of 16 January 2002. 1.4 The inspection of the Commission's file carried out by the European Ombudsman's services has not revealed any elements that would call into doubt the Commission's explanations. 1.5 On the basis of the above, the Ombudsman does not consider it necessary to inquire further into this aspect of the case. **2 The complainant's request for access to documents** 2.1 In his complaint, the complainant alleged that the Commission did not give him access to the documents related to the Commission's decision not to fill the post of SNE. 2.2 In its opinion, the Commission stated that on 15 November 2002 DG MARKT forwarded to the complainant all the existing documents related to the concerned procedure, thus a copy of a note from Mr M., Director General of DG MARKT, to Mr R., Director General of Directorate General Administration (DG ADMIN), concerning the change in DG MARKT's structure which resulted in the merging of Unit D/1 and D/2, a copy of a note from DG ADMIN to DG MARKT of 19 November 2001, transmitting the three applications for the post of SNE in Unit D/3 and anonymised copies of the letters to the two other candidates for the SNE post, identical to that sent to the complainant on 16 January 2002. 2.3 The Ombudsman's services carried out an inspection of the Commission's file. No written decision by the Commission concerning the decision not to fill the post of SNE was found in the Commission's file. It further appeared that there were no other documents related to this decision apart from the documents the Commission had disclosed to the complainant. The inspection also showed that the anonymised copies of letters the complainant had received corresponded to the letters that the Commission had sent to the other two candidates. 2.4 On this basis, the Ombudsman considers that there has been no maladministration by the Commission in relation to this aspect of the case of the case. **3 The complainant's claim for compensation** 3.1 The complainant claimed a compensation of 100.000 € for the material and moral damage. 3.2 In its opinion, the Commission underlined that the publication of a SNE vacancy cannot create a legitimate expectation on the part of applicants that they will be appointed. 3.3 In view of the above conclusions regarding the complainant's allegations, the Ombudsman considers that the complainant has not provided any evidence to establish the damage which the misleading letter of 16 January 2002 had allegedly caused him. **4 Conclusion** On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case. Yours sincerely, P. Nikiforos DIAMANDOUROS