Dear Mr H.,
On 7 August 1997 you made a complaint to the European Ombudsman concerning the European Commission's Open Competitions COM/A/995 and COM/B/1015, and particularly the age limit advertised in the notices of competition.
On 9 September 1997, I forwarded your complaint to the President of the European Commission inviting him to send his opinion on your case. As I had on 14 July 1997 instituted an own-initiative inquiry into the use of age limits in the recruitment of staff for the Community institutions, I forwarded to you on 24 March 1998, for your comments, the Commission's opinion on my own-initiative inquiry. On 23 April 1998, you forwarded your observations. On 4 November 1998, I completed my own-initiative inquiry.
I am writing now to let you know the results of the inquiries that have been made. I regret the length of time it has taken to deal with your complaint, which was due to the need which became apparent during the consideration of your case to investigate the age-limit practices of the Community institutions on my own initiative.

THE COMPLAINT

You complained to the European Ombudsman about Commission competitions COM/A/995 and COM/B/1015. You had applied to take part in these competitions, but were refused permission to take part because you were born before 16.8.1955.

THE INQUIRY

The Commission's opinion on the own-initiative inquiry
The Commission informed the Ombudsman that on 21 January 1998 it had taken a political decision in principle to cease to specify age limits in notices of competition. The Commission considered it vital that the decision be implemented by common agreement among the Community institutions. As an interim solution, the Commission raised the age limit to 45 for forthcoming competitions for recruitment to the entry grade.
The complainant's observations
In his observations, the complainant maintained his complaint to the European Ombudsman. He said he was happy about the European Commission's decision to abandon the imposition of age limits. At the same time, however, he considered that the Commission had admitted that the imposition of age limits for competitions had not been right.
The complainant stressed that the Community institutions were still imposing an age limit of 45 for a transitional period. This barred the way to the complainant, as he was 46. He considered that the abolition of age limits came too late for him, as he could not take part in competitions aimed specifically at nationals of the new Member States.
The complainant claims damages for discrimination on grounds of age. His principal claim is that he should be given a post corresponding to those covered by the competition, but without having to take a competition. His secondary claim is for full financial compensation for loss of earnings based on the difference between his net earnings and the net pay of an EU official, taking account of all the other benefits enjoyed by EU officials.

THE DECISION

1 The European Ombudsman's own-initiative inquiry 626/97/BB concerning the use of age limits for the recruitment to the Community institutions
1.1 On the basis of Article 138e of the Treaty establishing the Communities, the European Ombudsman is empowered to conduct an inquiry on his own initiative in relation to possible maladministration in the activities of the Community institutions or bodies. On 14 July 1997, in response to your complaint and other complaints about age limits, the Ombudsman initiated an inquiry concerning the use of age limits for the recruitment to the Community institutions.
1.2 Before launching his own initiative inquiry the Ombudsman had a comparative research done about the use of age limits in the various Member States. This research indicated that there does not exist a common constitutional or legal principle in the Community Member States either allowing or prohibiting the use of age limits. An age limit is applied in the public sector in more than half of the Member States. However, it is generally higher than 35. Moreover, there is an unmistakable tendency towards the abolition of age limits in the Member States.
1.3 The Ombudsman's own-initiative inquiry as well as his inquiries into the individual complaints showed that the age limits imposed by the institutions varied from 35, 40 and 45 to 55. It was claimed that they were necessary for a variety of purposes, including the following: to ensure career development, geographical distribution and the right balance between numbers of male and female staff. It was also claimed that age limits were necessary, inter alia, in order to avoid: difficulties in adapting and acclimatising to a multilingual and multicultural environment, which increased with age, youth unemployment, and increases in numbers of applicants.
1.4 As regards human rights provisions, the own-initiative inquiry revealed that the possibility could not be excluded that the European Convention on Human Rights might cover discrimination on grounds of age if there were no objective and reasonable justification for it.
1.5 The Ombudsman found that age is to be regarded as one possible form of discrimination. As regards the European Union, this has been particularly apparent from the Amsterdam Treaty, and this being the case, it will become all the more necessary to combat discrimination on grounds of age when that Treaty enters into force.
1.6 The Ombudsman is of the view that every citizen of the Union should have the possibility to seek employment in the administration of the Union. If it is considered appropriate to restrict this possibility, this needs to be carried out with sufficient justification, avoiding anything which could be construed as discrimination or arbitrariness in the recruitment of staff.
2 The legal basis for the application of age limits in the recruitment to the European Community institutions
2.1 The European Ombudsman noted that, pursuant to Annex III, Article 1(g), of the Staff Regulations of the European Communities, the Community institutions may specify an age limit in notices of competitions. However, the Ombudsman took the view that the Community institutions' current practice of imposing different age limits on different grounds and without sufficient justification could not be regarded as correct application of age limits.
2.2 The Ombudsman's inquiries appear to indicate that the Community institutions could envisage the setting of a single, appropriately reasoned and sufficiently justified, age limit. If it is not felt that the use of age limits can be abandoned, the institutions should, however, clarify the provisions of the Staff Regulations concerning age limits, to ensure that they cannot be imposed in a discriminatory or arbitrary manner.
3 Decision in principle to abandon age limits for the recruitment
3.1 During the Ombudsman's inquiry, the European Parliament decided on 20 October 1997 to raise the age limit for the entry grade to 45 in future competitions. Parliament intended that its personnel department should report to its Secretary-General two years later with a view to reassessing the situation.
3.2 On 21 January 1997, the European Commission decided in principle to abandon the imposition of age limits for the purpose of staff recruitment. According to the Commission, this decision ought to enter into force by inter-institutional agreement. As an interim solution, the Commission decided to raise the age limit to 45 in its future competitions for recruitment to the entry grade.
3.3 In view of the above, and of the fact that the European Commission decided in principle, on 21 January 1997, to abandon the use of age limits, and of the possible conclusion of an inter-institutional agreement, the European Ombudsman considered that there were no grounds for continuing the own-initiative inquiry into the imposition of age limits by the Community institutions.
4 The complainant's demand for a corresponding post or alternatively full financial compensation
4.1 In his comments, the complainant primarily claims that he should be granted an equivalent post without a competition, and secondarily that he should be paid compensation for the damages arising from the fact that, because of the age limit, he is unable to take part in competitions intended for nationals of the new Member States.
4.2 The European Ombudsman does not have the power to consider the demand for a corresponding post to be granted without a competition, or for compensation.
Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. I have therefore decided to close the case.

FURTHER REMARK

The European Ombudsman asked the European Commission to inform him of measures taken by the institutions to reach agreement on abandoning the use of age limits.
The President of the European Commission is also being informed of this decision.
Yours sincerely,
Jacob SÖDERMAN