Strasbourg, 6 November 2007

Dear Mr L.,

On 11 September 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/B/7/03.

On 19 October 2006, I forwarded the complaint to the Director of EPSO. On 24 and 25 October 2006, you requested the re-examination of the admissibility of certain aspects of your complaint. On 4 December 2006, I informed you and the Director of EPSO of the scope of my inquiry into your complaint.

EPSO sent its opinion on 27 February 2007. I forwarded it to you with an invitation to make observations, which you sent on 24 April and 21 June 2007.

On 17 October 2006, you requested information on the progress made with your complaint. On 23 October 2006, this information was provided to you.

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

THE COMPLAINT

The facts according to the complainant can be summarised as follows.

The complainant, an official of the European Commission, took part in Open Competition EPSO/B/7/03 (assistants B5/B4 - proofreader)(1). The pre-selection tests and the written tests took place on 24 April 2004. On 18 May 2004, the Selection Board invited the complainant to submit his full application before 18 June 2004. On 9 August 2004, the Board informed him that his application had been rejected because it did not meet the condition concerning professional experience.

On 17 August 2004, the complainant requested the re-examination of his application, arguing that it showed that he had the relevant professional experience. He went on to provide all supporting documents and to explain that he had worked as a B-official in the French public service and had carried out the tasks of a proofreader for more than five years.

On 9 September 2004, having received no reply to his request, he sent an e-mail to the Office for Official Publications of the European Communities ("OPOCE") to which he received no reply.

On 17 September 2004, the complainant sent another e-mail to OPOCE, asking for information on the progress made with his request. He also asked to be provided with his marks, the mark required in order to be invited to submit a full application, and the mark required in order to be invited to the oral test. Again, he received no reply.

On the same day, he received a reply from the President of the Selection Board (dated 15 September 2004) to his request for re-examination indicating that the certificates that he had submitted did not establish that he possessed the requisite professional experience.

On 18 October 2004, he submitted a complaint, pursuant to Article 90(2) of the Staff Regulations, with a view to annulling the decisions of the Selection Board dated 9 August 2004 and 15 September 2004 and to suspending the recruitment procedure. His complaint pursuant to Article 90(2) of the Staff Regulations concerned specifically:

• the Selection Board's non-compliance with the European Code of Good Administrative Behaviour as regards the deadline to reply to his requests;
• the fact that he received no reply to his request for access to his marks; the marks of the last candidate accepted after the pre-selection tests; and the marks of the last candidate invited to the oral exam.

On 13 November 2004, the reserve list was published in the Official Journal and, on 6 January 2005, on EPSO's website.

In his complaint to the European Ombudsman, the complainant made the following allegations and claims:

(1) The complainant alleged that the Selection Board's reply to his request for reconsideration was sent late, that is, one day before the oral test.

According to the complainant, the reply to his request for reconsideration was not sent within the two-week deadline provided for in Part 4 (Dealing with Enquiries)(2) of the Commission's Code of Good Administrative Behaviour. Similarly, the reminder that he sent on 9 September 2004 received no reply. The reply was finally sent one day before the date of the oral test, which, according to the complainant, was late.

(2) The complainant alleged that, in violation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3) ("Regulation 1049/2001"), EPSO failed to reply to his request for information, in which he asked to be provided with his marks, with the mark required in order to be invited to submit a full application, and with the mark required in order to be invited to the oral test.

He never received a reply to his request made on 17 September 2004. According to him, EPSO failed to comply with Regulation 1049/2001 and the Charter of Fundamental Rights. He considered that he should be given access to his personal file, that is, his marks. He further argued that the marks required in order to have access to the various stages of the Competition are not confidential and are normally mentioned in letters informing complainants that they have been excluded from the Competition.

(3) The complainant alleged that EPSO failed to reply to his Article 90 complaint dated 18 October 2004.

The complainant pointed out that he never received a reply to his Article 90 complaint. He added that he was aware that the absence of an answer constituted an implicit decision rejecting his complaint. However, he considered that the institutions should abolish implicit decisions and that they should always reply to citizens. The decision to implicitly reject a request is contrary to the obligation to give reasons and to the objective of the internal remedies, which is to find a friendly solution.

(4) The complainant alleged that the Selection Board wrongfully rejected his application of 15 September 2004 and made a manifest error of appreciation:

(i) He argued that he attached to his application all relevant supporting documents as provided for in the Notice of Competition.

The complainant pointed out that he was unable to provide detailed work certificates, since he had worked as a proofreader several years before taking part in the Competition and his hierarchical superiors at the time had changed positions. That is the reason why he provided instead copies of work contracts and salary slips.

(ii) The Selection Board was not entitled to ask for more detailed documents.

Documents such as those provided by the complainant are not drafted in order to act as supporting documents for an application to a Competition. They are consequently less precise. This is moreover the case as regards documents issued by a national public service. He argued that, according to the Notice of Competition, appropriate supporting documents should specify the nature of the tasks. Moreover, the Guide to Applicants indicated that salary slips and work contracts were adequate. Consequently and according to the case-law of the Community Courts(4), the Selection Board could not request more detailed documents, as it would have added a requirement that was not contained in either the Notice of Competition or the Guide to Applicants.

(iii) The Selection Board discriminated against candidates from the French national public service, by not taking into account the content of French administrative acts.

The complainant argued that French administrative law defines the content of administrative acts concerning his professional situation. Consequently, he was unable to provide other documents to prove his professional experience. He recalled that, according to the case-law of the Community Courts(5), the Selection Board must apply the relevant national law to assess the documents provided by candidates. The complainant also failed to understand the relevance of the requirement to provide more detailed documents, since the European institutions themselves do not comply with it when they appoint staff. Decisions from the Appointing Authorities do not, in sum, refer to the specific tasks of the official or the agent being recruited.

(5) The complainant also alleged that the Selection Board's deliberation in order to establish the list of successful candidates and its subsequent decision to publish the list are irregular because, in accordance with Article 25 of the Staff Regulations(6), a decision should have been taken on the complainant's case beforehand.

The complainant considered that, since, in his view, he had good chances of passing the Competition, the Selection Board had, in acting the way it did, infringed the principle of equality between candidates. The Board illegally excluded him from the Competition and limited its choice and its discretionary power(7). According to the case-law of the Community Courts, this should have led to the annulment of the Competition.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

The facts

The complainant applied for Open Competition EPSO/B/7/03, published on 4 July 2003, to constitute a reserve list of assistants (B5/B4) in the field of proofreading and production.

Candidates were required to have obtained, before 15 September 2003, a post- secondary education diploma, as well as at least three years of professional experience in the field of the Competition and at the same level as that described in the Competition. The professional experience was to have been acquired after the said diploma had been obtained.

The complainant applied for the field of proofreading (field 2), which involved the following duties:

"Working under supervision, proofreaders will be expected to proofread French-language manuscripts.

This involves:

- preparing manuscripts in terms of style and typography,

- proofreading printer's proofs,

- delivering the ‘pass for press’ order,

- participating in the design of publications,

- participating in the organisation of and follow-up to the production process in the field of publications."

The Competition consisted of four steps, which preceded the drawing up of the reserve list:

1. three multiple-choice pre-selection tests;
2. the examination by the Selection Board of the applications of the 55 best candidates, in order to establish whether they met all the selection requirements. The best candidates were defined as those who obtained the highest marks in the pre-selection tests and the pass-mark in each of these tests;
3. a written test for the candidates who passed steps (1) and (2);
4. an oral test, to which were invited the 24 best candidates who had obtained at least 30 points in the written tests.

The complainant was excluded after the second step because he had not acquired, after the diploma giving access to the Competition, professional experience of at least three years in the field chosen and at the level of the duties described in the Notice of Competition. On 9 August 2004, the complainant was informed accordingly.

On 17 August 2004, the complainant lodged a request for reconsideration of his application.

On 15 September 2004, the Board confirmed its decision, because the certificates attached by the complainant to his application did not show that he had the required professional experience in the field of the Competition.

On 18 October 2004, the complainant lodged an Article 90 complaint.

Comments
(1) The complainant alleged that the Selection Board's reply to his request for reconsideration was sent late, given the planned date for the oral test

The complainant had been excluded after the second step of the Competition, that is, the examination of his application, and was informed accordingly. The dates of the oral test had no influence on the decisions taken as regards the complainant.

(2) The complainant alleged that EPSO failed to reply to the complainant's request for information in which he asked to be provided with his marks, the mark required in order to be invited to submit a full application, and the mark required in order to be invited to the oral test

The pass-marks required in order to be admitted to the second step of the Competition (full application) and to be invited to the oral test were indicated in the Notice of Competition under paragraphs B.1. and B.2. Moreover, the number of points obtained by candidates at the pre-selection tests had no subsequent influence on the results of the Competition. The complainant was not excluded because of the points he obtained in the pre-selection tests, but because he did not meet one of the selection requirements.

As regards the information that the candidates could request, the Notice of Competition stated that they could request:

1. a copy of their replies and of the correct replies to the pre-selection tests;
2. the re-examination of their application by sending a letter within 20 calendar days after the notification of the Selection Board's decision.

EPSO pointed out that, in his request dated 17 August 2004, the complainant did not request information on the mark obtained in the pre-selection tests.

Furthermore, in order to guarantee the authenticity of such requests, EPSO replied only to those sent by letter and signed by candidates within the foreseen deadlines and not to those sent by e-mail, as there was no guarantee that these requests had been sent by the candidates themselves.

The complainant obtained X points out of 40 in test (a), Y points out of 20 in test (b) and Z points out of 20 in test (c). In order to be invited to submit a full application, candidates should obtain the pass-mark in each test and a total of 50.50 points.

As the complainant did not meet one of the requirements of the Competition, his written test (d) was not corrected. Consequently, the marks obtained by the candidates in the written test do not concern to the complainant.

(3) The complainant alleged that EPSO failed to reply to his Article 90 complaint dated 18 October 2004

According to Article 90(2) of the Staff Regulations(8), the absence of reply to an Article 90 complaint is equivalent to an implied decision rejecting the Article 90 complaint.

(4) The complainant alleged that the Selection Board made a manifest error of appreciation in view of the supporting documents attached to his application

According to the provisions of the Notice of Competition and the established case-law of the Community Courts, a Selection Board should take a decision only on the basis of the supporting documents attached to the candidates' applications. In the present case, the Board noted that no document submitted by the candidate referred to his professional experience in the field of the Competition or to the duties performed in relation to this field. On the contrary, all documents show, unambiguously, that he has professional experience as a secretary. This is confirmed by the fact that the complainant was recruited on 1 February 2001 at the Commission as a C-category typist following Competition COM/C/2/99. Consequently, the Board did not make a manifest error of appreciation.

The duties of a secretary are very different from those of a proofreader; therefore professional experience as a secretary cannot be considered as appropriate for a position of proofreader. This can be easily checked by reading the complainant's description of his duties provided in his application.

After the request for reconsideration made by the complainant, the Selection Board had to confirm its initial decision, in order to avoid favouring the complainant and thus discriminating against other candidates who were excluded from the competition for the same reasons.

The Selection Board complied with the provisions of the Notice of Competition, acted within the limits of its powers, in complete independence and without discriminating against other candidates.

(5) The complainant also alleged that the Selection Board's deliberation in order to establish the list of successful candidates and its subsequent decision to publish the list are irregular because, in accordance with Article 25 of the Staff Regulations, a decision should have been taken on the complainant's case beforehand

EPSO pointed out that the provisions of Article 25 of the Staff Regulations are not suspensive. Moreover, they deal with individual decisions concerning officials of the Communities.

EPSO noted that the complainant was informed of the examination of his application on 9 August 2004 and of the decision of the Selection Board as regards his request for re-examination on 15 September 2004, before, that is, the reserve list was drawn up (26 October 2004) and published in the Official Journal (13 November 2004).

The complainant's observations

The complainant made, in summary, the following observations.

The complainant maintained his complaint and requested an apology from EPSO. He noted that parts of EPSO's reply to the complaint constitute instances of maladministration and asked the Ombudsman to reach such a finding. He referred to EPSO's rephrasing of the second allegation and its non-compliance with the Code of Good Administrative Behaviour as regards replies to his e-mails and his Article 90 complaint.

(1) The complainant alleged that the Selection Board's reply to his request for re-examination was sent late, that is, one day before the oral test

Contrary to what EPSO stated, the date of the oral exam was important to the complainant. The reply that the complainant was expecting to his request for reconsideration had an impact on his participation in the oral exam.

(2) The complainant alleged that, in violation of Regulation 1049/2001 concerning access to documents, EPSO failed to reply to his request for information in which he asked to be provided with his marks, the mark required in order to be invited to submit a full application, and the mark required in order to be invited to the oral test

The complainant disagreed with the way EPSO rephrased his allegation, by referring to "pass-mark". He stated that the marks required in order to be invited to submit a full application and to be invited to the oral test are not mentioned in the Notice of Competition, as explained by EPSO.

The complainant was satisfied that he had eventually, after three requests, namely, his e-mail dated 17 September 2004, his Article 90 complaint, and his complaint to the Ombudsman, obtained knowledge of his marks, as well as the mark required in order to be invited to submit a full application. He found that this was excessive. He also noted, however, that EPSO did not inform him of the mark required in order to be invited to the oral test. He did not accept EPSO's argument that the complainant had no interest in being informed of these marks. He argued that, in accordance with Regulation 1049/2001 and the European Ombudsman’s decision on complaint 2747/2005/IP, he did not have to show an interest in order to obtain the information.

He recalled that this e-mail, dated 17 September 2004, was not a request for reconsideration but a request for information. EPSO's refusal to reply to that request is contrary to Regulation 1049/2001, to which EPSO made no reference in its opinion. Furthermore, by refusing to reply to requests made by e-mail without informing the candidates, EPSO fails to comply with principles of good administrative behaviour.

(3) The complainant alleged that EPSO failed to reply to his Article 90 complaint dated 18 October 2004

The complainant considered EPSO's position to be at variance with the provisions of the Charter of Fundamental Rights, and the Staff Regulations; the case-law of the Community Courts; and several of the Ombudsman's decisions (1733/2004/OV, 3184/2004/TN, 1217/2004/OV). He requested that the institutions (a) abolish implicit decisions to reject requests; (b) give a suspensive effect to administrative remedies; and (c) establish the practice of implicit decisions to accept requests made under Article 90(2) of the Staff Regulations. He also requested that the Ombudsman (a) suggest to the institutions to modify Article 91 of the Staff Regulations, so that expenses be assumed by the institution if it fails to reply, and (b) send a special report to Parliament on this subject.

(4) The complainant alleged that the Selection Board wrongfully rejected his application on 15 September 2004 and made a manifest error of appreciation

According to the complainant, EPSO failed to reply appropriately to his arguments. It did not prove that there had been no discrimination against the complainant and did not reason its decision.

The complainant considered that EPSO wrongfully interpreted his experience in the French public service and was confused as to his grade and his function. "Secrétaire d'administration" is a grade, and not a function, and corresponds to a wide range of jobs. EPSO wrongfully based its decision on the decision made by the Selection Board for Open Competition COM/C/2/99. The fact that the complainant passed a competition to recruit secretaries does not mean that his professional experience is limited to administrative tasks.

The jobs of secretary and proofreader both require good knowledge of French. However, in order to be a proofreader, skills in typography and printing are required. The complainant demonstrated that he has these skills by passing the pre-selection tests.

The complainant provided work contracts and pay slips, as requested by the Notice of Competition. He recalled that these documents are not intended to serve as supporting documents for taking part in a competition and, consequently, do not provide very detailed information on the tasks carried out. In light of the above, he cannot be excluded from the Competition because the official documents he provided do not specify the tasks he carried out.

The complainant noted that the information provided on official French documents is similar to the information mentioned in work contracts drafted by the European institutions. He considered that EPSO should consequently apply the principle of consistency and consider that the documents that he provided are appropriate.

(5) The complainant also alleged that the Selection Board's deliberation in order to establish the list of successful candidates and its subsequent decision to publish the list are irregular because, in accordance with Article 25 of the Staff Regulations, a decision should have been taken on the complainant's case beforehand

The complainant referred to Article 25 of the Staff Regulations in order to explain why he should have received a reasoned reply. He did not, however, refer to the suspensive nature of these provisions.

THE DECISION

1 Alleged delay in replying to a request for re-examination

1.1 The complainant, an official of the European Commission, took part in Open Competition EPSO/B/7/03 (assistants B5/B4 - proofreader). On 9 August 2004, the Selection Board informed him that his application had been rejected because it did not meet the condition concerning professional experience. On 17 August 2004, the complainant requested the re-examination of his application. On 9 September 2004, as he had received no reply to his request, he sent an e-mail to the Office for Official Publications of the European Communities ("OPOCE") to which he received no reply. On 15 September 2004, he received a negative reply from the President of the Selection Board. The complainant alleged that the Selection Board's reply to his request for reconsideration was sent late, that is, one day before the oral test. He argued that it was not sent within the two-week deadline provided for by the Commission's Code of Good Administrative Behaviour.

1.2 In its opinion, the European Personnel Selection Office ("EPSO") explained that, as the complainant had been excluded after the second step of the Competition and informed accordingly, the dates of the oral test had no influence on the decisions taken concerning him.

1.3 First, the European Ombudsman recalls that it is good administrative practice to deal with letters and queries from candidates in competitions properly and speedily. He also recalls that, according to the case-law of the Community Courts, when a Selection Board reviews a request for reconsideration of an application, it must do so with the required diligence(9). He notes that, according to the Notice of Competition, the Board will reply to such requests as soon as possible.

1.4 The Ombudsman observes that the complainant requested the re-examination of his application on 17 August 2004 and that the Selection Board replied to his request on 15 September 2004.

1.5 The Ombudsman notes that the Notice of Competition provides for the formal right of candidates to seek re-examination of their application from the Selection Board. He further notes that this right should be exercised within strict time-limits, that is, 20 days from the date of the Selection Board's decision. This strict deadline is designed to ensure that the re-examination of applications is carried out expeditiously, both for the benefit of candidates and in order to ensure the correct functioning of competitions.

The Ombudsman also considers that undue delays in providing any information to the complainant would have led him to suffer anxiety, which would have been exacerbated by the fact that the oral phase of the examination was imminent.

The Ombudsman is thus of the view that, if EPSO is unable to carry out the re-examination immediately, for example because the Selection Board cannot be immediately convened, candidates seeking the re-examination of their application should at least be sent a holding response informing them that their request for re-examination has been received and providing them with the date when they should expect a substantive reply setting out the findings of the Selection Board.

Given that EPSO did not take such steps in the present case, the Ombudsman considers that this is an instance of maladministration and will make a critical remark below.

2 Alleged failure to reply to a request for information

2.1 The complainant alleged that, in violation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(10) ("Regulation 1049/2001"), EPSO failed to reply to the complainant's request for information, dated 17 September 2004. In this request, the complainant asked to be provided with his marks; the mark required in order to be invited to submit a full application; and the mark required in order to be invited to the oral test.

2.2 In its opinion, EPSO explained that the pass-marks required in order to be admitted to the second step of the Competition and to be invited to the oral test were indicated in the Notice of Competition under paragraphs B.1. and B.2. It further pointed out that the number of points obtained by candidates at the pre-selection tests had no subsequent influence on the results of the Competition. The complainant was not excluded because of the points he obtained in the pre-selection tests, but because he did not meet one of the selection requirements. As regards the information that the candidates could request, the Notice of Competition stated that they could request:

1. a copy of their replies and of the correct replies to the pre-selection tests;
2. the re-examination of their application, by sending a letter within 20 calendar days after the notification of the Selection Board's decision.

EPSO pointed out that, in his request dated 17 August 2004, the complainant did not request information on the mark obtained in the pre-selection tests. Furthermore, in order to guarantee the authenticity of such requests, EPSO replied only to those requests that were sent by letter and signed by the complainant and not to those sent by e-mail, since there was no guarantee that these requests had been sent by the candidates themselves.

In its opinion, EPSO indicated that the complainant obtained X points out of 40 in test (a); Y points out of 20 in test (b); and Z points out of 20 in test (c). In order to be invited to submit a full application, candidates had to obtain the pass-mark in each test and a total of 50.50 points.

As the complainant did not meet one of the requirements of the Competition, his written test (d) was not corrected. Consequently, the marks obtained by the candidates in the written test do not concern the complainant.

2.3 In his observations, the complainant disagreed with EPSO and stated that the marks required in order to be invited to submit a full application and to be invited to the oral test were not mentioned in the Notice of Competition.

The complainant was satisfied that he had, after three requests, obtained knowledge of his marks, as well as the mark required in order to be invited to submit a full application. However, he found that this was excessive. He noted, however, that EPSO did not inform him of the mark required in order to be invited to the oral test.

He did not accept EPSO's argument that he had no interest in being informed of these various marks. He argued that, in accordance with Regulation 1049/2001 and the Ombudsman’s decision on complaint 2747/2005/IP, he did not have to show an interest in order to obtain the information.

He recalled that his e-mail dated 17 September 2004 was not a request for re-examination, but a request for information. EPSO's refusal to reply to this request for information is contrary to Regulation 1049/2001, to which EPSO made no reference in its opinion. Furthermore, by refusing to reply to requests made by e-mail without informing candidates of this policy, EPSO fails to comply with principles of good administrative behaviour.

2.4 First, the Ombudsman notes that, in his allegation of failure to reply to a request for information, the complainant refers to Regulation 1049/2001. The Ombudsman recalls that Regulation 1049/2001 deals with the right of access to "documents" of European institutions and does not concern requests for "information" addressed to European institutions. Since the complainant requested information, rather than specific documents, Regulation 1049/2001 does not apply in this case.

The Ombudsman recalls, however, that principles of good administration, embodied in the Commission's Code of Good Administrative Behaviour (Part 4) and in the European Code of Good Administrative Behaviour (Article 13), require that European institutions reply to correspondence from citizens.

2.5 The Ombudsman notes that the complainant requested information, by e-mail dated 17 September 2004, as regards his marks; the mark required in order to be invited to submit a full application; and the mark required in order to be invited to the oral test. He further notes that, despite the fact that the request was repeated in his Article 90 complaint made on 18 October 2004, the complainant received no reply.

The Ombudsman observes that EPSO only provided the marks obtained by the complainant, as well as the mark required in order to be invited to submit a full application, in its opinion to the Ombudsman. The Ombudsman regrets that EPSO only provided this information after the introduction of the complaint to the Ombudsman, despite having had two previous opportunities to provide the requested information. However, the Ombudsman considers that there are no grounds to pursue the inquiry into this aspect of the complaint.

The Ombudsman notes that EPSO has not yet provided the mark required to be invited to the oral test, explaining that the complainant had no interest in knowing it. The Ombudsman considers that it is not for EPSO to assess whether or not the information could be useful for the complainant(11). The refusal to provide this information is an instance of maladministration. The Ombudsman will make another critical remark below.

2.6 The Ombudsman notes that EPSO argues that no reply was sent to the complainant's request for information because his request had been sent by e-mail. The Ombudsman notes that, according to information provided on EPSO's website, all questions concerning the present Competition should be addressed to a specific e-mail address (opoce-competitions@cec.eu.int). The Ombudsman notes that the complainant's request for information dated 17 September 2004 was sent to this e-mail address.

The Ombudsman is not convinced that EPSO could not send information relating to the complainant to an email address provided by the complainant himself. However, even if EPSO considered that, for objective reasons, such as the need to verify the identity of the person making the request, it could not reply to the complainant's request for information directly, it should at least have replied to the e-mail in question stating that the complainant should make such a request by post and that the request should be signed. Therefore, EPSO's failure to reply to the request for information or at least to inform the complainant that such request should be signed and made by normal post constitutes an instance of maladministration. The Ombudsman will make another critical remark below.

3 Alleged failure to reply to the Article 90 complaint

3.1 The complainant alleges that EPSO failed to reply to his Article 90 complaint dated 18 October 2004.

3.2 In its opinion, EPSO stated that, according to Article 90(2) of the Staff Regulations, the absence of a reply to an Article 90 complaint is equivalent to an implied decision rejecting it.

3.3 In his observations, the complainant considered EPSO's position to be at variance with the provisions of the Charter of Fundamental Rights and the Staff Regulations; the case-law of the Community Courts; and several Ombudsman decisions. He requested that the institutions abolish the possibility implicitly to reject requests; that they give a suspensive effect to administrative remedies; and that they establish the possibility implicitly to accept requests made under Article 90(2) of the Staff Regulations.

3.4 The Ombudsman notes that, according to Article 90(2) of the Staff Regulations, the Appointing Authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months. The Ombudsman notes that Article 90(2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. However, this rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not, in any way, give the administration the right to depart from the obligations resulting from the principles of good administration. In these circumstances, the Ombudsman concludes that EPSO’s failure to reply to the complainant's complaint of 18 October 2004 constitutes an instance of maladministration. He will make a critical remark below.

4 Alleged wrongful rejection of the application

4.1 The complainant alleged that the Selection Board wrongfully rejected his application on 15 September 2004 and made a manifest error of appreciation:

1. he argued that he attached to his application all relevant supporting documents as provided for in the Notice of Competition;
2. the Selection Board was not entitled to ask for more detailed documents;
3. the Selection Board discriminated against candidates from the French national public service, by not taking into account the content of French administrative acts.

4.2 In its opinion, EPSO stated that, according to the provisions of the Notice of Competition and the established case-law of the Community Courts, a Selection Board should take a decision only on the basis of the supporting documents attached to the candidates' applications. In the present case, the Selection Board noted that no document submitted by the complainant referred to his professional experience in the field of the Competition or established that he performed duties in relation to this field. On the contrary, all documents show, unambiguously, that he has professional experience as a secretary. This is confirmed by the fact that the complainant was recruited on 1 February 2001 at the Commission as a C-category typist following Competition COM/C/2/99. Consequently, the Board did not make a manifest error of appreciation.

EPSO stated that the duties of a secretary are very different from those of a proofreader; therefore professional experience as a secretary cannot be considered as appropriate for a position of proofreader. This can be easily checked by reading the complainant's description, contained in his application, of the duties he performed in the relevant post.

EPSO stated that after the request for re-examination made by the complainant, the Selection Board had to confirm its initial decision, in order to avoid favouring the complainant and thus discriminating against other candidates who were excluded from the competition for the same reasons.

4.3 In his observations, the complainant considered that EPSO wrongfully interpreted his experience in the French public service and was confused as to his grade and his function. He pointed out that "Secrétaire d'administration" is a grade, and not a function, and corresponds to a wide range of jobs. EPSO wrongfully based its decision on the decision made by the Selection Board for Open Competition COM/C/2/99. The fact that the complainant passed a Competition intended to recruit secretaries does not mean that his professional experience is limited to administrative tasks.

The jobs of secretary and proofreader both require good knowledge of French. However, in order to be a proofreader, skills in typography and printing are required. The complainant demonstrated that he has these skills by passing the pre-selection tests.

The complainant provided, as requested by the Notice of Competition, work contracts and pay slips. He recalled that these documents are not intended to serve as supporting documents for taking part in a competitionand, consequently, do not provide very detailed information on the tasks carried out. In light of the above, he cannot be excluded from the Competition because the official documents he provided do not specify the tasks he carried out.

The complainant noted that the information provided on official French documents is similar to the information mentioned in work contracts drafted by the European institutions. He considered that EPSO should consequently apply the principle of consistency and consider that the documents that he provided are appropriate.

4.4 The Ombudsman notes that, according to the case-law of the Community Courts, the Selection Board is responsible for assessing on a case by case basis if the documents provided by the candidate as regards his diplomas and professional experience correspond to the level required by the Staff Regulations and the Notice of Competition. In carrying out this task, the Selection Board has a wide power of discretion and the Court should only examine whether there has been a manifest error in the exercise of this power(12).

4.5 The Ombudsman notes that, according to the Notice of Competition, candidates should, on 15 September 2003, have obtained the post-secondary diploma, as well as professional experience of the same level of at least three years in the field chosen. Studies, vocational training, traineeships and professional experience should be specified in detail in the application and imperatively accompanied by numbered supporting documents. It is the candidates' responsibility to make sure that their application form, duly completed, signed and accompanied by all the supporting documents (copies of diplomas attesting successful completion of studies, professional experience clearly indicating the starting and finishing dates and the exact nature of the duties carried out) is sent by registered post within the required deadlines(13).

4.6 The Ombudsman notes that the Selection Board provided the following explanations to explain the exclusion of the complainant from the Competition:

1. in its letter of 9 August 2004, the Selection Board stated that the complainant's professional experience did not comply with the conditions stated at points A.II.2 and C.2 of the Notice of Competition. In effect, on the closing date of the Competition, that is, 15 September 2003, candidates should have, after obtaining the diploma giving access to the Competition, acquired professional experience of at least three years in the field chosen and of the same level as the duties described in title A.1. of the Notice of Competition(14).
2. in its letter of 15 September 2004, the Selection Board stated that the certificates accompanying the complainant's application did not show that he possessed the required professional experience in the field, as indicated in points A.II. 2 and C.2. of the Official Journal(15).

The Ombudsman further notes that, in its opinion, EPSO refers to the field of the Competition and the complainant's professional experience as a C-category typist.

4.7 As regards the level of the complainant's professional experience, the Ombudsman notes that, in his application, the complainant specified the following as regards his professional experience:

"Assistant administratif (cat. B.) au sein du service Marchés publics/Equipement [du Ministère de l'Education Nationale - CROUS de Versailles] de 01/09/94 à 31/08/97 et 01/07/98 à 31/08/98

Assistant administratif (cat. B) - service "Concours" [Ministère de l'Education Nationale - rectorat de Versailles] de 01/09/98 à 31/01/01".

The Ombudsman also notes that the complainant attached to his application the following relevant supporting documents:

1. his salary slip for September 1994 as "Secrétaire d'administration scolaire et universitaire CROUS", where his grade mentioned is B1;
2. his salary slips for August 1997, July 1998, and August 1998, as "Secrétaire d'administration scolaire et universitaire CROUS" where the grade mentioned is B4;
3. his salary slip for January 2001 as "Secrétaire d'administration scolaire et universitaire, Service concours".

Therefore, the Ombudsman concludes that the complainant provided supporting documents in order to demonstrate that he had more than three years of professional experience as a B-official in the French public service(16). However, this does not constitute evidence that he had specific experience as a proofreader.

4.8 As regards the complainant's professional experience in the field of the Competition, the Ombudsman notes that the complainant stated the following in his application:

"Assistant administratif (cat. B.) au sein du service Marchés publics/Equipement [du Ministère de l'Education Nationale - CROUS de Versailles] de 01/09/94 à 31/08/97 et 01/07/98 à 31/08/98:

- Rédaction et préparation des modèles de documents relatifs aux appels d'offres avant leur impression

- Préparation des avis à paraître dans les publications légales.

Assistant administratif (cat. B) - service "Concours" [Ministère de l'Education Nationale - rectorat de Versailles] de 01/09/98 à 31/01/01:

Participation à l'élaboration de brochures et documents d'information et préparation de sujets de concours (mise en forme, correction, bon à tirer) avant impression par l'imprimerie nationale."

While the above description provided by the complainant may relate to certain tasks of a proofreader, the Ombudsman notes that the French administrative text describing the tasks of administrative secretary ("Décret N°94-1017"), which the complainant attached to his application, merely states the following:

"Les secrétaires administratifs assurent des tâches administratives d'application. A ce titre, ils sont chargés, notamment d'appliquer les textes de portée générale aux cas particuliers qui leur sont soumis. Ils peuvent exercer des tâches de rédaction, de comptabilité, de contrôle et d'analyse."

This document does not constitute evidence that he had specific experience as a proofreader.

4.9 The Ombudsman agrees with the complainant that the fact that a person holds the position of secrétaire administratif in the French administration does not necessarily imply that the person solely carries out secretarial tasks. The tasks carried out by secrétaires administratifs in the French administration are diverse. However, it cannot be presumed, absent specific proof, that a secrétaire administratif carries out tasks of a proofreader.

4.10 The Ombudsman notes that the Notice of Competition, which constitutes the legal framework of the Competition, clearly stated that the detailed nature of the tasks should be supported by appropriate documents. Candidates must have understood that they should provide documents specifically mentioning their professional experience as proofreaders. He also notes that the complainant admits that the documents that he provided do not provide this kind of information.

It thus appears that the complainant did not provide appropriate documents proving his professional experience in the relevant field.

4.11 The Ombudsman recalls that, according to the case-law of the Community Courts, in order to establish whether the admissibility conditions are met, the Selection Board may only take into account the information provided by the candidates and the supporting documents attached to their application. The Selection Board cannot be required to make enquiries itself in order to ensure that these conditions are met(17).

4.12 The Ombudsman takes the view that, if there was a problem as regards the level of detail provided in the documents of the French public service, it is for the French public service to rectify this deficiency. EPSO is not empowered to seek remedies for the effects of deficiencies in the documents provided by the French public service, for example, by making a presumption that the complainant has the necessary experience.

4.13 As regards the argument made by the complainant that he had demonstrated his ability to be a proofreader by passing the pre-selection tests, the Ombudsman considers that the requirement to pass the pre-selection tests and the requirement to demonstrate professional experience are separate requirements, each of which must be met separately. Thus, the fact that a candidate might pass a pre-selection test designed to test skills as a proofreader cannot be used to eliminate deficiencies as regards the professional experience of the candidate.

4.14 The Ombudsman thus concludes that the decision of EPSO was well-founded and that there was no maladministration by EPSO as regards this aspect of the complaint.

5 Alleged irregular decisions to establish and publish the list of reserve

5.1 The complainant also alleges that the Selection Board's deliberation in order to establish the list of successful candidates and its subsequent decision to publish the list are irregular because, in accordance with Article 25 of the Staff Regulations(18), a decision should have been taken on the complainant's case beforehand.

5.2 In its opinion, EPSO pointed out that the provisions of Article 25 of the Staff Regulations are not suspensive. Moreover, they deal with individual decisions concerning officials of the Communities. EPSO noted that the complainant was informed of the examination of his application on 9 August 2004 and of the decision of the Selection Board as regards his request for re-examination on 15 September 2004, before, that is, the reserve list was drawn up (26 October 2004) and published in the Official Journal (13 November 2004).

5.3 The Ombudsman notes that the complainant received a reply to his request for re-examination before the oral exams took place and obviously before the Selection Board took its decisions as regards the reserve list.

As regards the Article 90 complaint, this was lodged on 18 October 2004 with the Appointing Authority (EPSO). The Ombudsman notes that, as the case-law of the Community Courts recognises, candidates excluded from competitions can introduce Article 90 complaints against the decisions taken by Selection Boards. However, the Appointing Authority cannot annul or modify a particular decision taken by a Selection Board(19).

The Ombudsman also recalls that, according to the case-law of the Community Courts, Article 90(2) appeals have no suspensive effect(20) on decisions of the Selection Board. Therefore, the Ombudsman concludes that there is no maladministration as regards this aspect of the complaint.

6 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remarks:

1. The Ombudsman notes that the Notice of Competition provides for the formal right of candidates to seek re-examination of their application from the Selection Board. He further notes that this right should be exercised within strict time-limits, that is, 20 days from the date of the Selection Board's decision. For the benefit of candidates and in order to ensure the correct functioning of competitions, this strict deadline is designed to ensure that the re-examination of applications is carried out expeditiously.

The Ombudsman also considers that the undue delays in providing any information to the complainant would have led the complainant to suffer anxiety, which would have been exacerbated by the fact that the oral phase of the examination was imminent.

The Ombudsman is thus of the view that, if EPSO is unable to carry out the re-examination immediately, for example, because the Selection Board cannot be immediately convened, candidates seeking the re-examination of their application should at least be sent a holding response informing them that their request for re-examination has been received and providing them with the date when they should expect a substantive reply setting out the findings of the Selection Board. Given that EPSO did not take such steps in the present case, this is an instance of maladministration.

2. The Ombudsman notes that EPSO has not yet provided the complainant with the mark required in order to be invited to the oral test, explaining that he had no interest in knowing it. The Ombudsman considers that it is not for EPSO to assess whether or not the information could be useful for the complainant. Therefore, EPSO's failure to provide the complainant with the requested information constitutes an instance of maladministration.

3. The Ombudsman is not convinced that EPSO could not send information relating to the complainant to an email address provided by him. However, even if EPSO considered that, for objective reasons, such as the need to verify the identity of the person making the request, it could not reply to the complainant's request for information directly, it should at least have replied to the e-mail in question stating that the complainant should make such a request by post and that the request should be signed. Therefore, EPSO's failure to reply to the request for information or at least to inform the complainant that such request should be signed and made by normal post constitutes an instance of maladministration.

4. The Ombudsman notes that Article 90(2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. However, this rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not, in any way, give the administration the right to depart from the obligations resulting from the principles of good administration. In these circumstances, the Ombudsman concludes that EPSO’s failure to reply to the complainant's complaint of 18 October 2004 constitutes an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The Director of the EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2003 C 156 A.

(2) "(...) A reply to a letter addressed to the Commission shall be sent within 15 working days from the date of receipt of the letter by the responsible Commission department. (...) If a reply cannot be sent within 15 working days (...) the member of staff responsible should send a holding letter (...)".

(3) OJ 2001 L 145, p. 43.

(4) Case T-158/89 Van Hecken v Economic and Social Committee [1991] ECR II-1341, paragraphs 22-25; T-139/00 Bal v Commission [2002] ECR-SC I-A-33 and II-139, paragraphs 35-36; and Joined Cases T-357/00, T-361/00, T-363/00 and T-364/00 Martínez Alarcón v Commission [2002] ECR-SC I-A-37 and II-161, paragraphs 61-62.

(5) Case T-82/92 Cortes Jimenez and Others v Commission [1994] ECR-SC I-A-69 and II-237, paragraphs 32, 34-35, 38.

(6) "Officials may submit requests concerning issues covered by these Staff Regulations to the Appointing Authority of their institution.

Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. (...)."

(7) Case C-345/90 Parlement v Hanning [1992] ECR I-949, paragraphs 22, 30-33.

(8) "Any person to whom these Staff Regulations apply may submit to the appointing authority a complaint against an act adversely affecting him (...)".

(9) Case T-189/99 Gerochristos v Commission [2001] ECR-SC I-A-11 and II-53, paragraph 19.

(10) OJ 2001 L 145, p. 43.

(11) Decision on complaint 2747/2005/IP.

(12) Case T-25/03 de Stefano v Commission [2005] ECR-SC I-A-125 and II-573. Paragraph 34 states the following: "[l]e jury d'un concours sur titres et épreuves a la responsabilité d'apprécier, au cas par cas, si les diplômes produits ou l'expérience professionnelle attestée de chaque candidat correspondent, compte tenu de la situation concrète de ce dernier et de sa formation effective, au niveau requis par les statuts et par l'avis de concours. Il dispose à cet égard d'un large pouvoir d'appréciation et le tribunal doit se borner à vérifier si l'exercice de ce pouvoir n'est pas entaché d'une erreur manifeste."

See also Case T-139/00 Bal v Commission [2002] ECR-SC I-A-33 and II-139, paragraph 55; Case T-214/99 Carrasco Benitez v Commission [2000] ECR-SC I-A-257 and II-1169, paragraphs 69-71.

(13) The Notice of Competition states the following: "A.II.2. [à] la date du 15 septembre 2003, les candidats doivent avoir acquis, postérieurement à l'obtention du diplôme de l'enseignement secondaire supérieur, une expérience professionnelle dans le domaine choisi et du niveau correspondant aux fonctions décrites au titre A, point I, d'une durée minimale de trois ans. (...) C.2. Les études, la formation, les stages et l'expérience professionnelle devront être précisés en détail dans l'acte de candidature et impérativement accompagnés des pièces justificatives numérotées. (...)[L]es candidats doivent prendre toutes les mesures pour que l'acte de candidature dûment complété, signé et accompagné de toutes les pièces justificatives (copie du/des diplôme(s) certifiant la réussite des études et expérience professionnelle faisant apparaître clairement les dates de début et de fin des prestations ainsi que la nature précise des tâches exercées) soit effectivement expédié (...) dans les délais requis (...)".

(14) The Selection Board stated: "votre expérience professionnelle ne répond pas aux conditions requises au point A.II.2 et C.2 de l'avis de concours. En effet, à la date limite de dépôt des candidatures fixé au 15/09/2003, les candidats devaient avoir acquis, postérieurement à l'obtention du diplôme donnant accès au concours, une expérience professionnelle d'une durée de 3 ans minimum dans le domaine choisi et du niveau correspondant aux fonctions décrites au titre A.I du même avis de concours."

(15) The Selection Board stated: "les attestations accompagnant votre acte de candidature ne démontrent pas l'expérience requise dans le domaine, telle que spécifiée aux points A.II. 2 et C.2. du Journal officiel".

(16) The Ombudsman notes that EPSO, in its opinion, referred to the complainant's professional experience as a C-category typist. This reference seems to be an attempt to call into question the relevance of the complainant's professional experience. However, the complainant himself did not consider this experience to be relevant for the Competition.

(17) Case T-145/02 Petrich v Commission [2004] ECR-SC I-A-101 and II-447. Paragraphs 45 and 49 state the following: "Le jury de concours, pour vérifier si les conditions d'admission sont satisfaites, peut uniquement tenir compte des indications fournies par les candidats dans leur acte de candidature et des pièces justificatives qu'il leur incombe de produire à l'appui de celui-ci. Le jury ne saurait être tenu de procéder lui-même à des recherches aux fins de vérifier si les candidats satisfont à l'ensemble des conditions posées par l'avis de concours. Ainsi, lorsque les dispositions claires d'un avis de concours prescrivent sans équivoque l'obligation de joindre à l'acte de candidature des pièces justificatives l'inexécution de cette obligation par un candidat ne saurait ni habiliter ni, à plus forte raison, obliger le jury ou l'autorité investie du pouvoir de nomination à agir en contrariété avec cet avis de concours".

(18) Article 25 of the Staff Regulations states that: "Officials may submit requests concerning issues covered by these Staff Regulations to the Appointing Authority of their institution.

Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.

Specific decisions regarding appointment, establishment, promotion, transfer, determination of administrative status and termination of service of an official shall be published in the institution to which the official belongs. The publication shall be accessible to all staff for an appropriate period of time."

(19) Case T-153/95 Kaps v Court of justice [1996] ECR-SC I-A-233 and II-663. Paragraph 78 states the following: "A cet égard, le Tribunal relève que, compte tenu de l'indépendance du jury de concours, l'institution concernée n'est pas habilitée à annuler ou à modifier une décision prise par le jury."

See also Case T-329/03 Ricci v Commission [2005] ECR-SC I-A-69 and II-315, paragraphs 34-35.

(20) Case T-18/93 Marcato v Commission [1994] ECR-SC I-A-215 and II-681. Paragraph 74 states the following: "A cet égard, ni la réclamation n° 693/92, du 13 juillet 1992, susvisée, formée par le requérant, ni le présent recours ne sauraient avoir un effet suspensif (...)".