Dear Mr M.,
On 13 July 1999 you lodged a complaint with the European Ombudsman against the European Commission concerning your exclusion from competition COM/LA/1/99.
On 7 September 1999 I forwarded the complaint to the Commission for its comments.
On 30 September 1999, the University of Lausanne provided me with further information in relation to your complaint which I forwarded to the Commission on 6 October 1999.
The Commission sent its opinion on your complaint on 7 January 2000, and I forwarded it to you on 21 January 2000 with an invitation to make observations, if you so wished. On 2 February 2000, you sent me your observations on the Commission's opinion.
On 10 February 2000, I sent a request for further information to the Commission.
On 14 March 2000 you wrote to me in order to draw my attention to the fact that you had been admitted to a competition organised by the European Parliament. I forwarded this letter and the document enclosed with it to the Commission on 20 March 2000.
On 11 May 2000, the Commission replied to my request for further information. I forwarded this reply to you on 19 May 2000 with an invitation to make observations, if you so wished. On 5 June 2000, you sent me your observations on the Commission's letter.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

On 13 July 1999, the complainant complained against the refusal of the Commission to allow him to take part in competition COM/LA/1/99 organised by the Commission with a view towards employing French language translators for which he had applied. According to point III B 2 of the notice of competition published in the Official Journal(1) candidates had to have completed a course of university education and obtained a degree ("des études universitaires de cycle complet sanctionnées par un diplôme de fin d'études"). The notice of competition further pointed out that the Selection Board would take account of the differences between the educational systems, and that examples of degrees were listed, on an indicative basis, in an appendix of the "Guide" accompanying the notice of competition. This guide contained indications for each of the 15 member states of the EU, including France ("Maîtrise ou équivalent"). The complainant, a Dutch national, had obtained a "Licence en Sciences Economiques" from the Ecole des Hautes Etudes Commerciales ("licence HEC") at the University of Lausanne in Switzerland in 1986.
In a letter of 10 May 1999, the Selection Board informed the complainant that he could not be admitted to the competition since he did not fulfil the condition set out at point III B 2 of the notice of competition. On 19 May 1999, the complainant queried this decision, pointing out that his diploma had been accepted on the occasion of previous competitions and when he had been employed, on 1 May 1999, as an auxiliary agent of the Commission. In a letter of 29 June 1999 the Selection Board confirmed its decision. According to the Selection Board, the complainant's diploma that had been obtained after three years' studies was not of the level required by the notice of competition, that is to say a maîtrise or an equivalent diploma.
In his complaint to the Ombudsman, the complainant expressed the view that he was being discriminated against. The requirement that a maîtrise or an equivalent diploma was necessary was specified in Appendix 1 of the "Guide" for France. However, for Belgium, Portugal and Spain a "licence" was required. The level of a "maîtrise" did not exist in Switzerland. Finally, the fact that he had been able to complete his studies in a shorter time (three years) was due to the fact that he had previously studied at the Ecole Polytechnique de Lausanne and had been given credit for some of the courses he had followed there. Today the same licence was awarded after four years of studies in order to give students more time to acquire practical experience as trainees. The curriculum had however remained identical. The complainant expressed the view that his exclusion from the competition resulted from a lack of understanding of the Swiss university system.
In a letter to the Ombudsman, the University of Lausanne explained that until 1996 the "licence HEC" could be obtained after a minimum of three years' studies. Since then a minimum of 8 semesters and 240 ECTS (European Credit Transfer System) credits is required. This change enabled the university to add several hours of courses although the difference against the previous regime was not significant. The main purpose of lengthening the programme had been to include traineeships with companies, exchanges with foreign universities and more personal work (e g in seminaries). The "licence" obtained by the complainant could under no circumstances be assimilated to a French "licence" and should rather be compared to a "maîtrise" under the French system. International recognition of the "licence HEC" was well established nowadays. A framework agreement between France and Switzerland from 1994 recognised the equivalence of a Swiss "licence" and a French "maîtrise". According to a table attached to the letter from the University of Lausanne, the "licence HEC" comprised a total of 2310 hours of courses in 1986 (three years' studies) and of 2338 hours in 1999 (four years' studies) whilst a "licence" from the University of Paris comprised only a total of 1590 hours of courses in 1999 (three years' studies). The holders of a "licence HEC" were furthermore admitted to postgraduate programmes throughout the world.

THE INQUIRY

The Commission's opinion
In its opinion, the Commission made the following comments with regard to the complaint:
The Selection Board had already explained to the complainant that the fact that he worked for the Commission as an auxiliary agent was irrelevant in the present context since the post concerned at the time had been a category B post which did not require a university degree.
The "licence HEC" obtained by the complainant in 1986 was not completely equivalent to the corresponding diplomas awarded after 1996. Whilst it was true that the universities in Belgium, Spain and Portugal awarded degrees called "licences", these degrees required a minimum of four or five years' studies. Likewise the "maîtrise" in France was awarded after four years' studies whilst the "licence" which was not regarded as sufficient to allow its holder to be admitted to the competition was awarded after three years' studies.
The fact that holders of a "licence HEC" were admitted to postgraduate programmes in member states of the EU did not give them the automatic right to have these degrees recognised as being equivalent to the relevant national degrees (like the "maîtrise" in France). Such recognition depended on the Ministry of Education of the member state concerned. It was current practice that this recognition was only granted if the applicant had passed one or more supplementary courses.
For these reasons, the Selection Board had, taking into account the existing differences between the educational systems, concluded that the complainant's degree did not give him the right to be admitted to the competition concerned.
The complainant's observations
In his observations, the complainant maintained his complaint and made the following additional comments:
Since the Commission's opinion had been received by the Ombudsman after the deadline set for that purpose (31 December 1999), the Ombudsman should not take it into account when deciding upon the complaint. The decision of the Commission not to admit him to the competition was incompatible with the Convention on the Recognition of Studies and Qualifications in Higher Education adopted on 21 December 1979 by an international conference of states invited by UNESCO (United Nations Educational, Scientific and Cultural Organisation) and with the Recommendation on the Recognition of Studies and Qualifications in Higher Education adopted by UNESCO on 13 November 1993. Paragraph 11 of the latter provided that in order to assess the equivalence of a diploma obtained in another country, the competent authorities should also take into account the rights which that diploma granted to its holder in the country where it was awarded. In this context, the complainant pointed out that since three months ago he occupied a post in the Swiss federal administration which was equivalent to a category A post. Excluding the complainant from the competition would mean that no civil servant of the Swiss federation could become an category A civil servant of the EU and that all holders of Swiss diplomas awarded before 1996 would be excluded. The complainant further claimed that he had worked as a trainee in a Turkish company for three months during the summer break in 1985 and in a Canadian company for a year in 1986/87 after having obtained his diploma. He also pointed out that the EU and Switzerland were about to sign agreements which inter alia would provide for an official recognition of Swiss degrees in the EU and vice versa. This showed that the question of the recognition of the diploma was a purely formal matter and did not concern the nature of the degree as such.
The complainant concluded by stressing that in 1986, university studies in Switzerland were of a duration of three years and that no other choice was possible.

FURTHER INQUIRIES

In view of the above, the Ombudsman concluded that he needed further information in order to deal with the complaint. He therefore asked the Commission to provide information on (1) the reasons why it considered the complainant's diploma as insufficient to admit him to the competition concerned, (2) on the question as to whether a "licence HEC" awarded by the University of Lausanne after 1996 would have been regarded as sufficient and (3) on the claim made by the University of Lausanne according to which an agreement concluded in 1994 between France and Switzerland recognised that the Swiss "licence" corresponded to a French "maîtrise".
Shortly afterwards, the complainant informed the Ombudsman that he had been admitted to competition EUR/A/151/98 organised by the European Parliament and the Council of the European Union. The complainant considered that this should be regarded as a precedent.
The Commission's reply
In its reply to the Ombudsman's request for further information, the Commission made the following comments:
For the purpose of admission to its category A competitions, the Commission followed the rule that university diplomas or equivalent diplomas, that is to say diplomas that had been recognised as academically equivalent or had been recognised by the member states of the EU, were to be required. To date, the complainant had not proven that his Swiss diploma awarded in 1986 had been recognised as being equivalent to one of the diplomas required by the Commission.
The Commission considered that it could not comment on the question as to whether a Swiss licence awarded after 1996 would have been regarded as sufficient, given that it could not prejudge the decision of the Selection Board that was primarily competent to deal with these matters. It added, however, that the question as to how competitions should be organised and the issue of conditions of access in particular would be reviewed in the context of the forthcoming administrative reform.
The Commission further stressed that the University of Lausanne had not claimed that the Swiss licence was equivalent to a French maîtrise. According to the 1994 framework agreement that had been concluded by the Conference of the Presidents of the Universities (France) and the Conference of the Headmasters of the Swiss Universities, the Swiss licence awarded after at least eight semesters' studies "corresponded" to a French maîtrise. However, the purpose of this provision was to facilitate the acceptance of the Swiss licence as a university diploma enabling its holder to pursue his or her studies at a French university. The agreement was not concerned with the recognition of the Swiss licence as a French maîtrise by the French Ministry of Education. The same applied with regard to the UNESCO Convention and Recommendation.
As regarded the complainant's admission to a competition organised by the European Parliament, each institution was sovereign as to how to draft its competition notices. Furthermore, candidates could not rely on the fact that they had been admitted to another competition.
The complainant's observations
In his observations on the Commission's reply, the complainant argued that since the Commission's reply had been received by the Ombudsman after the deadline set for that purpose (30 April 2000), the Ombudsman should not take it into account when deciding upon the complaint. The complainant also stressed that there was an incoherence, given that the European Parliament had accepted his diploma whilst the Commission refused to do so.

THE DECISION

1 Introductory remarks
1.1 In view of the fact that the Commission's opinion and the Commission's reply to the Ombudsman's request for further information were submitted after the expiry of the deadline set for that purpose, the complainant asks the Ombudsman not to take these documents into account when deciding upon his complaint.
1.2 According to Article 195 of the EC Treaty, the Ombudsman shall, when he considers that there is a possible instance of maladministration, forward the complaint to the institution concerned "which shall have a period of three months in which to inform him of its views". There is, however, no provision in the Treaty that would oblige the Ombudsman to disregard an opinion of an institution that is lodged after the expiry of that period of time. In the present case, the opinion was sent to the Ombudsman on 7 January 2000, i.e. only a few days after the deadline had expired, and the Commission apologised for this delay to the Ombudsman. There is thus no reason why the Commission's opinion should not be considered by the Ombudsman.
1.3 In so far as the reply to the request for further information is concerned, Article 3 (2) of the Statute of the Ombudsman(2) needs to be considered. According to this provision, the Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them. If this assistance is not forthcoming, the Ombudsman shall inform the European Parliament, which shall make appropriate representations (Article 3 (4) of the Statute). The European Ombudsman makes a request for further information if he considers that this information is necessary for him to be able to deal with a complaint. It would thus be inappropriate to disregard a reply to such a request for the sole reason that it arrived after the expiry of the deadline set by the Ombudsman for its submission. The Ombudsman is of the opinion that a delay in providing information that he has requested may in itself constitute an instance of maladministration. In the present case, however, the reply was sent to the Ombudsman on 11 May 2000, i.e. only a few days after the deadline had expired, and the Commission apologised for this delay to the Ombudsman. There is thus no reason why the Commission's reply should not be considered by the Ombudsman.
2 Discrimination
2.1 The complainant claims that the Commission discriminated against him by refusing to let him take part in competition COM/LA/1/99 on the grounds that his "licence" obtained in Switzerland in 1986 was not sufficient to allow his admission.
2.2 The Commission replies that there was no discrimination since the Selection Board had legitimately come to the conclusion that the complainant's degree was not sufficient to allow him to be admitted to the competition.
2.3 According to the notice of competition, candidates needed to have completed a course of university education and obtained a degree. Examples of degrees that were regarded as being sufficient were listed, on an indicative basis, in an appendix of the "Guide" accompanying the notice of competition. This guide contained indications for each of the 15 member states of the EU, including France ("Maîtrise ou équivalent"). Given that the complainant has obtained his degree in Switzerland, the decisive question is whether this degree has to be regarded as equivalent to any of the degrees indicated in the guide accompanying the notice of competition.
2.4 The fact alone that a "licence" obtained in Belgium, Spain or Portugal was considered as sufficient for admission to the competition cannot be regarded as decisive in this context. The Commission has explained that these degrees require at least four years' studies whilst the complainant's diploma was awarded after only three years of studies.
2.5 The Ombudsman considers furthermore that the fact that the complainant had previously worked as an auxiliary agent for the Commission cannot be regarded as relevant, given that that post was a category B post whilst the competition had been held for category LA posts. Neither could the fact alone that the complainant was admitted, on the basis of his diploma, to a category A competition by the European Parliament and the Council of the European Union oblige the Commission to consider that diploma as sufficient for the purposes of its own competition.
2.6 The complainant relies on the UNESCO Convention on the Recognition of Studies and Qualifications in Higher Education adopted on 21 December 1979 and the Recommendation on the Recognition of Studies and Qualifications in Higher Education adopted by UNESCO on 13 November 1993. The Ombudsman does not consider that these acts would have obliged the Commission to consider the complainant's diploma as sufficient for the purposes of the relevant competition.
2.7 The University of Lausanne also refers to the framework agreement concluded in 1994 by two bodies representing the universities in Switzerland and France. According to this agreement, the Swiss licence awarded after at least eight semesters' studies corresponds to a French maîtrise. The Ombudsman considers, nevertheless that the complainant has not established that the 1994 framework agreement is relevant to his case. The agreement refers to a Swiss licence awarded after at least eight semesters' studies. However, the complainant's diploma was awarded after only three years' studies. The complainant's references to the professional experience acquired during (in 1985) and after his studies (in 1986/87) do not appear to be relevant in this context.
2.8 The above does however not exclude the possibility that the complainant's diploma could have been regarded as equivalent to a French maîtrise on its own merits. The figures provided by the University of Lausanne confirm the latter's claim that the licence awarded to the complainant cannot be assimilated to a French "licence" but should rather be compared to a "maîtrise" under the French system. It also emerges from these figures that whilst the Swiss licence is now awarded after four years' studies, the number of hours taught has not significantly increased (2338 instead of 2310). It would thus not appear to be excluded to treat the Swiss licence awarded under the system in force until 1996 as equivalent to the licences that are nowadays awarded by Swiss universities and that correspond, as discussed before, to a "maîtrise" under the French system. The Ombudsman further considers that it is significant that two other Community institutions, the European Parliament and the Council of the European Union, have accepted that the complainant's diploma can be regarded as sufficient in order to allow him to take part in category A competition.
2.9 It has to be considered, however, that the Selection Board disposed of a certain margin of discretion with regard to the decision as to which degrees could be regarded as "equivalent" and thus as sufficient for admission to the competition.There would therefore only have been an instance of maladministration if the Commission had clearly exceeded its margin of discretion. The Ombudsman considers that it has not been established that this was the case.
2.10 On the basis of the above, there appears to have been no maladministration on the part of the Commission. The Ombudsman nevertheless considers it appropriate to make a further remark in this regard.
3 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration on the part of the European Commission. The Ombudsman therefore closes the file.

FURTHER REMARK

The Ombudsman would appreciate if the Commission could, in so far as future competitions are concerned, consider cooperating with the other institutions and bodies of the EU in order to avoid that different standards are applied with regard to the academic diplomas required for competitions for posts that are comparable.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) OJ 1999 no. C 21 A of 26 January 1999, p. 12.

(2) Decision no. 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (OJ L 113 page 15).