Strasbourg, 31 May 2005

Dear Mrs G.,

On 10 July 2004, you made a complaint to the European Ombudsman against the European Commission concerning your exclusion from competition COM/C/1/02.

On 30 September 2004, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 9 November 2004. I forwarded it to you with an invitation to make observations, which you sent on 28 January 2005.

On 13 April 2005, I wrote to inform you of the progress made in the handling of your complaint.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The background to the complaint is as follows:

Complaint 1196/2003/ELB

On 24 June 2003, the complainant lodged a complaint with the Ombudsman (1196/2003/ELB).

The complainant applied to competition COM/C/1/02, which aimed at constituting a reserve list of French-speaking typists (C4/C5)(1). On 26 August 2002, she was informed that she had passed the preselection tests, that the written tests were to take place in December 2002 and that updated information was available on EPSO's website. On 17 October 2002, her application was rejected because her professional experience was insufficient. On 25 October 2002, she sent a request for clarification, with which she enclosed a copy of her work contract. The decision of the Selection Board was confirmed on 6 November 2002, because the nature of her duties could not be identified. On 21 November 2002, she sent a second request for clarification explaining that the nature of her duties was explained in Annex 8 to her application. She was allowed to take part in the competition which was taking place the following day. On 7 February 2003, she was informed that her results in test (d) were insufficient(2) and she was excluded from the competition.

On 13 February 2003, she requested a copy of the marked version of her written tests.

On 24 February 2003, she sent a new request for clarification and lodged a complaint in accordance with Article 90 (2) of the Staff Regulations.

On 17 March 2003, EPSO, on behalf of the Selection Board, replied to her new request for clarification.

On 28 March 2003, she modified and added new information to her complaint under Article 90 (2).

On 10 June 2003, she received a negative reply to her complaint.

In her complaint to the Ombudsman, the complainant alleged that the Appointing Authority did not answer some of her questions mentioned in her complaint based on Article 90 (2) of the Staff Regulations.

On 19 May 2004, the Ombudsman closed the inquiry into the complaint. He considered that it could be inferred from the explanation given by the Commission and EPSO in their opinion that the Selection Board finally allowed the complainant to take part in the written tests on the basis of the documentary evidence attached to her original application to the competition. He concluded that the issues raised by the complainant in her original complaint had been sufficiently clarified and that no further inquiries were therefore necessary.

The present complaint: 2202/2004/ELB

On 10 July 2004, the complainant lodged a new complaint with the Ombudsman. This complaint is against the Appointing Authority's decision of 10 June 2003 to reject the complainant's complaint in accordance with Article 90 (2) of the Staff Regulations.

The complainant argues that, according to the Ombudsman's decision on complaint 1196/2003/ELB, the Selection Board allowed her to take part in the written tests on the basis of the documents attached to her application, which she had sent on time. She points out that, in contrast to the other candidates, she was invited only one day before the tests took place. She considers that she was not treated fairly and that this unfair treatment resulted in her exclusion from the competition.

The complainant therefore alleges that she was treated unfairly because she was not invited to participate in the tests for the competition until the day before they took place. The complainant claims that this unfair treatment should be corrected.

THE INQUIRY

The opinion of the Commission and EPSO

The Ombudsman forwarded the complaint to the President of the Commission. The Ombudsman received an opinion from the Commission, which was presented as containing the joint views of the European Personnel Selection Office (EPSO) and the Commission. The opinion can be summarised as follows:

The complainant's claim that the unfair treatment should be corrected cannot be sustained. If it had been considered that there was unfair treatment, the decision of the Selection Board would have been cancelled(3). The Appointing Authority, in reply to the complaint under Article 90 (2) of the Staff Regulations, stated that it could not give a favourable answer to the complainant's appeal and that the late invitation to the tests had not had an impact on her results.

It was only after the second re-examination request that the Selection Board decided to accept as a valid justification the complainant's explanations for her interpretation of the instructions in the notice of the competition as regards the annexes that should be attached to her application.

The Commission and EPSO recall that the Selection Board met two days before the tests. That is the reason why the invitation could be faxed to the complainant only the following day.

The Commission and EPSO consider that all reasonable organisational measures have been taken for this competition, including addressing re-examination requests that were dealt with a few days before the tests.

The complainant's observations

The complainant's observations can be summarised as follows:

The complainant points out that the Commission and EPSO, in their opinion, state that she was invited to the tests on the basis of her second re-examination request, and not on the basis of documents attached to her initial application. The complainant repeats that her letter of 21 November 2002, which was wrongly considered as a second re-examination request by the Commission, contained no new element. Consequently, the Selection Board is responsible for the delay in inviting her to the tests.

The complainant indicates that she failed in the tests because of the absence of preparation for the tests, the lack of rest and because of stress.

According to the complainant, the burden of proof is on the Commission to show that the lateness of the invitation was not the reason for her failure. This could be done by comparing the success rate of candidates invited one day before the tests with the success rate of the other candidates.

THE DECISION

1 Alleged unfair treatment and related claim

1.1 The complainant applied to take part in competition COM/C/1/02. Her application was rejected. After two requests for clarification, she was allowed to take part in the competition, which was to take place the following day. Her results in the competition were insufficient and she was excluded from it.

The complainant alleges that she was treated unfairly because she was not invited to participate in the tests for the competition until the day before they took place. The complainant claims that this unfair treatment should be corrected.

1.2 EPSO and the Commission argue that, if it had been concluded that there was unfair treatment, the decision of the Selection Board would have been cancelled(4). The Appointing Authority, in reply to the complaint made under Article 90 (2) of the Staff Regulations, stated that it could not give a favourable answer to the complainant's appeal and that the late invitation to the tests had no impact on her results. It was only after the second re-examination request that the Selection Board decided to accept as a valid justification the complainant's explanations for her interpretation of the instructions in the notice of the competition as regards the annexes that should be attached to her application. The Commission and EPSO recall that the Selection Board met two days before the tests. They explain that that is the reason why the invitation to participate in the tests could be faxed to the complainant only the following day.

1.3 The Ombudsman considers it useful first to recall the findings of his inquiry into complaint 1196/2003/ELB (point 2.4):

"As regards the fact that the complainant’s initial application and first request for clarification were rejected, whereas her second request was accepted, the Ombudsman points out that the explanation given to the complainant by the Commission and EPSO in their opinion on the complaint appears to differ from that given by the Appointing Authority in its reply to the complaint under Article 90 (2) of the Staff Regulations. In particular, the Ombudsman considers that it can be inferred from the explanation given by the Commission and EPSO in their opinion that the Selection Board finally allowed the complainant to take part in the written tests on the basis of the documentary evidence attached to her original application to the competition." (Two footnotes omitted).

The Ombudsman considers that the information provided by the Commission and EPSO in their opinion in the present case is consistent with the above findings.

1.4 As regards the complainant’s allegation that she was treated unfairly, the Ombudsman first notes that the date for the tests was indicated in the notice of competition and in the letter informing the complainant that she had passed the preselection tests. He also notes that information on the timetable of the competition was available on EPSO's website. The Ombudsman therefore considers that the complainant, along with other candidates, was given adequate notice of the date when the tests would take place(5). The relevant question for the Ombudsman’s inquiry is therefore whether the complainant was treated unfairly because, although she was given adequate notice of the date of the tests, she did not know that she would be allowed to participate in those tests until the day before they took place.

1.5 In this regard, the Ombudsman notes the following chronology on the basis of the available information: after the rejection of her application on 17 October 2002, the complainant made a first request for clarification on 25 October 2002 which was rejected on 6 November 2002, followed by a second request on 21 November 2002, which was accepted at a meeting that took place two days before the tests, on 27 November 2002. On 28 November 2002, the complainant was invited by fax to take part in the tests the following day.

1.6 On the basis of the available information, the Ombudsman takes the view that the Selection Board appears to have replied to the complainant's requests within a reasonable time.

1.7 The Ombudsman recalls that, according to the case law of the Community courts, the principle of equality requires that the written tests be conducted on the same date for all candidates(6). The Ombudsman therefore considers that it would not have been possible to allow the complainant to take the tests later than other candidates.

1.8 Furthermore, the Ombudsman considers that to have postponed the tests for all candidates, at very short notice, could have resulted in unfair treatment of all the other candidates who had made arrangements to participate in the tests on the date announced.

1.9 The Ombudsman understands and regrets the anxiety that the complainant must have experienced as a result of her uncertainty, until almost the last moment, as to whether or not she would be allowed to participate in the tests. The Ombudsman considers reasonable the complainant’s view that her performance in the tests may have been affected by this situation. However, in view of the findings in points 1.6 to 1.8 above, the Ombudsman does not consider that the available evidence shows that the complainant was treated unfairly, even on the assumption that the rejections of her original application and of her first request for clarification resulted from errors by the Selection Board in the evaluation of her professional experience. Any such errors were corrected using the procedure described for this purpose in the notice of the competition(7). Therefore, the Ombudsman takes the view that there is no maladministration as regards the complainant’s allegation of unfairness.

1.10 In view of the finding in 1.9 above, the Ombudsman does not consider that it would be useful to make further inquiries as suggested by the complainant.

1.11 Also in view of the finding in 1.9 above, the Ombudsman considers that the complainant’s claim cannot be sustained.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration as regards the complainant’s allegation of unfairness. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ C 18 A of 22.1.2002.

(2) Test (d) aimed at assessing the candidates' command of the French language. Candidates were asked to correct approximately 50 lines containing spelling mistakes, grammatical and syntactical errors. The complainant obtained 8.6 points out of 20.

(3) The Ombudsman understands the Commission and EPSO to refer to the decision of the Selection Board, dated 7 February 2003, to exclude the complainant from the competition because her results in test (d) were insufficient.

(4) The Ombudsman understands the Commission and EPSO to refer to the decision of the Selection Board, dated 7 February 2003, to exclude the complainant from the competition because her results in test (d) were insufficient.

(5) As to the requirement of adequate notice, see Case 155/85, Dieter Strack v. European Parliament, [1986] ECR 3561.

(6) See Case 130/75 Vivien Prais v. Council, [1976] ECR 1589, paragraph 14; Case T-132/89 Vincenzo Gallone v. Council, [1990] ECR II-549, paragraph 36.

(7) On this point, see Case T-173/99 Ekaïm Mazuel v. Commission, [2000] ECR IA-101, II-433, paragraph 103.