The background to the own-initiative inquiry

1. Article 228 of the Treaty on the Functioning of the European Union (TFEU) empowers the European Ombudsman to conduct inquiries on his own-initiative into possible instances of maladministration in the activities of the Union institutions, bodies, offices or agencies.

2. The present inquiry concerns EPSO's request for candidates to submit supporting documents in English, French or German when applying for an open competition.

3. The Ombudsman was prompted to open the present own-initiative inquiry when he was in the process of examining complaint 1994/2008/IP. That complaint was submitted by a candidate who had participated in Open Competition EPSO/AD/117/08 which aimed at constituting a reserve list to recruit principal administrators in the field of fraud prevention.

4. Complaint 1994/2008/IP mainly concerned EPSO's decision to use English, French or German only in its correspondence with candidates participating in Open Competition EPSO/AD/117/08. The complainant alleged that this decision constituted a violation of the principle, embodied in Article 24 TFEU, that every citizen of the Union may write to any of the institutions or bodies of the Union in one of the official EU languages and receive an answer in the same language.

5. In his decision of 4 March 2010 on the above complaint, the Ombudsman concluded that EPSO's actions did not constitute maladministration. The Ombudsman noted, however, that, in his observations on EPSO's opinion, the complainant had put forward a new allegation. He alleged that EPSO's request for candidates to translate all supporting documents enclosed with their applications into English, French or German discriminated against those citizens whose documents had been written in a different language. The Ombudsman did not consider it appropriate to deal with this allegation in his inquiry into the above complaint. He, nevertheless, took the view that the issue raised by the complainant was relevant and deserved to be examined. The Ombudsman therefore decided to launch an inquiry of his own-initiative concerning this issue.

The subject matter of the inquiry

6. In his letter opening the present own-initiative inquiry, the Ombudsman asked EPSO (i) whether the request that all documents not drafted in English, French or German be accompanied by a translation into one of those languages was specific to Open Competition EPSO/AD/117/08, or if it was also made in other competitions, and if so, which ones, and (ii) to explain the justification(s) for such requests, including the specific legal basis, if any.

7. The Ombudsman informed the complainant in case 1994/2008/IP of the present own-initiative inquiry.

The inquiry

8. On 11 June 2010, the Ombudsman opened the present own-initiative inquiry.

9. On 15 July 2010, EPSO submitted its response to the Ombudsman's questions.

10. On 14 September 2010, the Ombudsman submitted a request for additional information, to which EPSO replied on 15 October 2010.

The Ombudsman's analysis and conclusions

A. Information submitted by EPSO to the Ombudsman

11. As a preliminary remark, EPSO emphasised that, in accordance with Annex III to the Staff Regulations[1], Notices of Competition are drawn up by the Appointing Authority which enjoys a wide discretion in deciding upon the conditions of an open competition. Furthermore, it underlined that all conditions concerning a specific open competition are, without distinction, applied to every candidate.

12. As regards Open Competition EPSO/AD/117/08, EPSO stressed that point IV.3 of the relevant Notice of Competition ("How to apply - full application") stated that "all documents not in English, French or German must be accompanied by a translation into one of those languages, which you [candidates] may do [themselves]"[2].

13. The idea to request candidates to enclose a translation of the supporting documents with their applications was introduced in 2003, when EPSO began to organise open competitions for the recruitment of citizens of countries which were to join the Union on 1 May 2004. Due to the limited number of staff members within the Union institutions possessing knowledge of the languages of the new Member States, the clause aimed at speeding up the selection boards' assessment of applications.

14. EPSO further stated that this request was also introduced for general competitions as from 2007[3]. It stressed that the wording of the clause was, however, slightly modified over time, and that the purpose of the clause was explained in the Notices of Competition as follows:

"To speed up the progressing and examination of files, EPSO would like to ask [candidates] to provide an unofficial translation - into English, French or German - of all supporting documents relating to [their] diplomas and professional experience. However, [the] possible omission of such a translation will not constitute [a] reason for exclusion"[4].

15. Following the adoption of a new structure for notices of competition in March 2009, EPSO eliminated the request that candidates provide a translation of all supporting documents into English, French or German.

The Ombudsman's request for additional information and EPSO's reply

16. On 14 September 2010, the Ombudsman asked EPSO to inform him (i) of the reasons why, since March 2009, candidates participating in open competitions were no longer asked to provide a translation of all supporting documents into English, French or German and (ii) of any reflections that EPSO might have regarding the possible use of such an obligation in the future.

17. In its reply of 15 October 2010, EPSO underlined the importance that it attaches to diversity and emphasised its commitment to creating a positive image of the EU institutions in all Member States. It went on to state that one of the main objectives of EPSO is to attract highly qualified candidates to open competitions. Among the several initiatives taken in pursuit of this aim, EPSO noted in particular that it had modified the Notices of Competition and had decided to abolish the request that candidates provide a translation into English, French or German of all supporting documents which were not drafted in one of those languages.

18. As regards the question about the possibility of making such a request again in the future, EPSO further explained that, in so far as the organisation of competitions is concerned, it is no longer in the same position as it was before enlargement. Thus, it concluded that it did not foresee that it would make use of the aforementioned clause in the future.

B. The Ombudsman's assessment

19. As regards the first question posed in the letter opening the present own-initiative inquiry, the Ombudsman notes that the request for a translation into English, French or German of the supporting documents was introduced in competition notices in the pre-2004 enlargement phase and was extended to all general competitions in 2007. It was therefore not specific to Open Competition EPSO/AD/117/08.

20. As regards the Ombudsman's question concerning the reasons for the introduction of this clause, EPSO made reference to the limited availability in 2004of EU staff who had knowledge of the languages of the new Member States and to the need to speed up the processing of the applications. The Ombudsman assumes that EPSO intended to refer to the languages of those new Member States that were indeed new, since EPSO's argument would clearly be hard to understand in so far as, for instance, applications drafted in Greek and sent by Cypriot candidates are concerned. Subject to this clarification, the Ombudsman agrees that the relevant clause in the notices of competition was introduced at a time when the EU faced a very specific situation, that is to say, the accession of a considerable number of new Member States whose languages had mostly not been official EU languages beforehand. The enlargement period from 2004 to 2007 saw the accession of a total of 12 new Member States. While the need to guarantee language diversity in the EU is obvious, the Ombudsman can understand that, when organising its competitions in the pre-accession phase, EPSO may have found itself in an especially difficult situation with regard to the new languages spoken in the new Member States. Given the lack of staff members who were sufficiently proficient in the new languages and the need to act rapidly during the selection procedures, EPSO's decision to request applicants to provide translations of their supporting documents into English, French or German does not, therefore, appear to be unreasonable.

21. However, the Ombudsman considers that the reasoning put forward by EPSO cannot explain why the request to provide translations into English, French or German was maintained after the accession phase, when it was extended to general competitions in 2007. One would assume that EPSO had by then recruited staff that was able to deal with applications in the languages of the new Member States. In any event, the relevant clause does not appear to have been limited to documents drawn up in languages of the new Member states that had not been official EU languages beforehand. In fact, it would seem that, by virtue of this clause, Italian or Spanish candidates, for example, would also have been expected to submit translations, although it may reasonably be assumed that EPSO had staff members who mastered these languages. The Ombudsman notes that EPSO did not provide any explanation as to why the extension of this practice beyond the accession period was deemed necessary.

22. In its submissions to the Ombudsman, EPSO argued that the translation was not compulsory and that failure to provide such a translation did not constitute a reason for exclusion from the competition concerned. The Ombudsman notes, however, that the wording that was used in at least some of the notices of competition, according to which, "all documents not in English, French or German must[5] be accompanied by a translation into one of those languages", suggests that providing a translation was obligatory. At the very least, such wording was misleading, since candidates could reasonably interpret it as meaning that a translation was compulsory.

23. The Ombudsman notes, however, that EPSO informed him that the practice of asking for such translations was abolished in March 2009. Moreover, EPSO indicated that it does not foresee using such or similar clauses in the future.

24. In these circumstances, the Ombudsman considers that there are no grounds for further action in this case.

C. Conclusions

On the basis of his own-initiative inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further action.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 30 May 2012

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[1] Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968, OJ L 56 Special Edition 1968, 1 December 1972, as recently amended by 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] OJ 2008 C 16 A, p. 10.

[3] See, for example, Notice of Competition EPSO/AD/94/07, OJ 2007 C 45 A, p. 3.

[4] See, for example, Notice of Open Competitions EPSO/AST/46/08, EPSO/AST/47/08, EPSO/AST/48/08, EPSO/AST/49/08 and EPSO/AST/50/08, OJ 2008 C 96 A, p. 1.

[5] Emphasis added.