THE BACKGROUND TO THE COMPLAINT

1. In 2007, the complainant applied for the position of "Legal Officer" (Call for Expression of Interest for Temporary Agents TA/AD6/2006/0027) advertised by the European Joint Undertaking for ITER and the Development of Fusion Energy ("Fusion for Energy").

2. Fusion for Energy is a Joint Undertaking created under the Euratom Treaty by Council Decision No. 2007/198/Euratom of 27 March 2007 establishing the European Joint Undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it.[1] The objectives of Fusion for Energy are to provide Europe's contribution to the international fusion energy project, the implementation of the Broader Approach agreement between Euratom and Japan and the preparation for the construction of demonstration fusion reactors (DEMO).

3. After attending an interview in Barcelona in May 2007, the complainant was informed by a letter dated 3 July 2007 that he had been shortlisted for the position.

4. On 21 February 2008, the complainant applied again to Fusion for Energy, this time for the position of "Legal Advisor for Contracts Negotiations" (Vacancy Notice F4E/TA/AD6/2008/0054). In his application, the complainant submitted that the Vacancy Notice described the same position as the Call published in 2007. He therefore asked Fusion for Energy to verify whether his name had been overlooked.

5. On 30 April 2008, the Selection Committee of Fusion for Energy sent the complainant a letter informing him of the rejection of his application.

6. In an e-mail sent to Fusion for Energy on 22 May 2008, the complainant requested that the decision to reject his application be reconsidered. The complainant stressed that the 2007 Call and the Vacancy Notice published in 2008 basically concerned the same position and that he had been shortlisted for the position of "Legal Officer" in 2007. He asserted that, as long as the position of "Legal Officer" had not been filled, there was nothing to prevent Fusion for Energy from having recourse to candidates from the already established shortlist with a view to filling this position. The complainant added that even if the intention was to create a separate post of "Legal Advisor", the candidates from the shortlist for the position of "Legal Officer" had already proven to be qualified for this kind of job. The complainant submitted a note with a detailed comparison of the two job descriptions. Finally, the complainant remarked that a possible reason for the rejection of his application might have been he was older than 60 years of age. He stressed, however, that he was particularly eager to prove that the prohibition of discrimination on the grounds of age that was in force in the EU was justified.

7. In the absence of a reply by Fusion for Energy, the complainant sent a reminder on 16 August 2008.

THE SUBJECT MATTER OF THE INQUIRY

8. In his complaint, the complainant basically made the following allegations:

1. Fusion for Energy failed properly to handle his application for the position of "Legal Advisor for Contracts Negotiations" by omitting to take into account the fact that his name had been placed on the reserve list for the position of "Legal Officer" in 2007. According to the complainant, these two positions were virtually identical.
2. Fusion for Energy failed to reply to the complainant's e-mails of 22 May and 16 August 2008.

9. The complainant submitted the following claim:

Fusion for Energy should reconsider his application, having due regard to the existing shortlist for the position of "Legal Officer".

THE INQUIRY

10. The complaint was lodged on 17 October 2008. On 12 November 2008, the Ombudsman asked Fusion for Energy for an opinion on this complaint.

11. Fusion for Energy sent its opinion on 11 February 2009. The opinion was forwarded to the complainant, who submitted observations on 7 April 2009.

12. On 4 May 2009, the Ombudsman asked Fusion for Energy for further information concerning this case. Fusion for Energy sent its reply on 8 June 2009. This reply was forwarded to the complainant, who submitted observations on 27 June 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation of failure properly to handle job applications and relevant claim

Arguments presented to the Ombudsman

13. The complainant alleged that Fusion for Energy failed properly to handle his application for the position of "Legal Advisor for Contracts Negotiations" by omitting to take into account the fact that, in 2007, his name had been put on the reserve list for the position of "Legal Officer" in 2007. According to the complainant, these two positions are virtually identical. The complainant claimed that Fusion for Energy should reconsider his application, having due regard to the existing shortlist for the position of "Legal Officer".

14. In its opinion, Fusion for Energy pointed out that point 7 of the Vacancy Notice published in 2008 stated that only complete applications (containing a CV and a "motivation letter") would be taken into account. According to Fusion for Energy, the complainant's application had been incomplete, since it did not include such a letter. Fusion for Energy added that the selection committee, which was bound by the terms of the vacancy notice, thus had to reject the complainant's application.

15. Fusion for Energy furthermore submitted that each selection procedure was distinct and unique and that applications therefore had to comply with the requirements laid down in the relevant vacancy notice. According to Fusion for Energy, the complainant's arguments based on the fact that he had been shortlisted for another post therefore had to be rejected.

16. Fusion for Energy insisted that the profile of the relevant post had been different from the one for which the complainant had been shortlisted. It furthermore confirmed its commitment to promote equal opportunities and noted that it strongly encouraged applications from all candidates who fulfilled the eligibility and selection criteria, regardless of nationality, gender, age or other such grounds. Fusion for Energy therefore rejected the suggestion that its decision was due to the complainant's age. In this context, it recalled that the complainant had been put on a reserve list in 2007 concerning another post.

17. In his observations, the complainant reiterated his view that the two posts had been most similar. The complainant provided a copy of his e-mail application for the post of "Legal Advisor for Contracts Negotiations". As regards the issue of age, the complainant noted that he had only expressed a suspicion which could be confirmed if it were to be found that the call for expressions of interest published in 2007 had not led to any recruitment and that the second call had resulted in the recruitment of a considerably younger lawyer.

18. Having examined the opinion and the observations, the Ombudsman considered that he needed further information to deal with this case. He therefore asked Fusion for Energy to provide further explanations concerning three issues. First, the Ombudsman noted that, in its letter of 30 April 2008 rejecting the complainant's application, Fusion for Energy explained that the selection committee had first checked the "general conditions of eligibility" and then proceeded to a careful comparison of the merits of the candidates. It added that, on this basis, only those candidates who had been considered best qualified had been invited to an interview. Fusion for Energy continued by saying that it regretted "that the Committee has decided not to invite you for an interview". The wording of this letter appeared to suggest that the complainant's application had been considered eligible. However, in its opinion Fusion for Energy argued that the complainant's application had been rejected because a "motivation letter" was missing, i.e., because the application was ineligible. Second, the Ombudsman pointed out that the call for expressions of interest published in 2007 required that candidates should have proven experience in one or more of three areas, one of which was "EU Contract and Public Procurement Law". The Ombudsman noted that the complainant asserted that contract law was one of the main areas covered by him during his career spanning 30 years. It thus appeared that he considered that he had "proven experience" in "EU Contract and Public Procurement Law", as required under the 2007 Call. Third, the Ombudsman asked Fusion for Energy to provide information on how many candidates were put on a reserve list on the basis of the 2007 Call, how many of these candidates had been recruited and how the post advertised in the 2008 Vacancy Notice had been filled, including the age bracket to which the successful candidate belonged.

19. In its reply, Fusion for Energy explained that, in all its selection procedures, the selection committee first checked the eligibility of the applicants, on the basis of the criteria set out by the vacancy notice. As a second step, the selection committee checked whether the eligible candidates complied with the essential criteria stated in the vacancy notice. As a third and final step, the selection committee assessed whether the applications of the eligible candidates complied with all essential criteria and invited to an interview those candidates it considered best matched the published profile. Fusion for Energy further explained that, once these decisions had been taken and recorded, two kinds of letters were prepared, namely, (a) information letters to all those candidates who had not been invited for an interview (due to the fact that they were not eligible, that they failed to comply with essential criteria or that they were not considered to be among the best candidates) and (b) letters inviting candidates to an interview. According to Fusion for Energy, only these two types of letter were sent for the sake of administrative simplification. Fusion for Energy therefore considered that no discrepancy existed between the letter received by the complainant and the reasons for rejecting his application.

20. Fusion for Energy reiterated its view that the complainant's application was incomplete. It referred to point 7 of the relevant vacancy notice, according to which each application had to contain "a motivation letter of 2 pages maximum in English". Fusion for Energy explained that the selection committee did not consider the complainant's general e-mail as constituting a "motivation letter", since it did not contain or develop on the candidate's aspirations or professional qualities but only made reference to another selection procedure in which the selection committee in charge of this recruitment procedure had not been involved. It added that it was the applicants' responsibility to ensure that their applications meet all the formal requirements.

21. Fusion for Energy noted that the profiles of the candidates remaining on the reserve list established in 2007 had been assessed. As regards the complainant, his experience on public procurement was limited to private enterprises, from the "suppliers" side, and dated back to 1983. Fusion for Energy pointed out that the outcome of both selection procedures had been a reserve list with several successful candidates. It further recalled that inclusion in a reserve list did not guarantee recruitment, but that the candidate might be offered as job if the need for his or her profile arose.

22. Fusion for Energy explained that as a result of the selection procedure carried out in 2007, eight (8) candidates had been placed on the reserve list, two of whom had been recruited so far. The selection procedure carried out in 2008 had led to a reserve list comprising seven (7) candidates, two of whom had been recruited so far. Fusion for Energy added that the candidates recruited so far belonged to the age bracket between 30 and 40 years. This was also the case for most of the remaining candidates on both reserve lists. Fusion for Energy recalled that both positions published corresponded to an AD 6 grade, which required, as a minimum, a university degree obtained after at least 3 years of studies and 3 years of professional experience. According to Fusion for Energy, this fact often resulted in a high number of applications from young candidates.

23. In his observations on this reply, the complainant stressed that point 7 of the relevant notice of vacancy had also required applications to be sent by e-mail. The complainant noted that he had complied with this requirement and that, in his e-mail, he had referred to the fact that he was on a reserve list established on the basis of a practically identical recruitment procedure. In the complainant's view, it would not have been logical to put forward further arguments.

24. As regards his qualifications, the complainant pointed out that Fusion for Energy had focused on one of six items listed in the notice of vacancy, i.e., public procurement, without mentioning the other items, concerning which he had a rich professional experience. The complainant further submitted that his experience concerning public procurement was not limited to 1983 but that both between 1974 and 1979 and in the most recent years of his career he had exclusively or mainly dealt with public procurement issues concerning public authorities.

The Ombudsman's assessment

25. The Ombudsman notes that the complainant and Fusion for Energy have put forward arguments concerning (i) the eligibility of the complainant's application and (ii) the substantive merits of this application.

26. As regards the first of these issues, the Ombudsman finds that the complainant does not dispute Fusion for Energy's argument that point 7 of the relevant vacancy notice stipulated that each application had to contain "a motivation letter of 2 pages maximum in English". Furthermore, the complainant does not dispute that he did not enclose a separate "motivation letter" but considers that the e-mail by which he informed Fusion for Energy of his application and to which he attached a copy of his CV should be considered as satisfying the relevant requirement. The Ombudsman notes that, if one disregards the opening and the closing formulaic expressions, the relevant e-mail consists of four short paragraphs. In these paragraphs, the complainant (i) informs Fusion for Energy that he wishes to apply for the position concerned, (ii) mentions that he is on the reserve list established on the basis of the recruitment procedure carried out in 2007, (iii) submits that both procedures concern the same position and (iv) points out that he would be available at short notice. As Fusion for Energy has correctly observed, the selection committee was bound by the terms of the relevant vacancy notice. The Ombudsman considers that the selection committee's conclusion that the complainant's e-mail could not be considered as a "motivation letter" within the meaning of point 7 of the vacancy notice does not appear to be unreasonable.

27. Given that Fusion for Energy's decision to consider the complainant's application to be ineligible thus appears to be correct, the Ombudsman takes the view that there is no need to address the arguments concerning the substantive merits of the complainant's application. It further follows that the complainant's claim cannot succeed.

28. The letter of 30 April 2008 in which Fusion for Energy informed the complainant that he would not be invited for an interview did not specify the reason for this decision. In its reply to the Ombudsman's request for further information, Fusion for Energy explained that, for the sake of administrative simplification, the same type of letter was sent to all candidates who were not invited for an interview, regardless of the reasons on which this decision was based. The Ombudsman considers that this approach is acceptable on condition that more specific explanations are given to any candidate who so requests. He notes, however, that Fusion for Energy provided such explanations to the complainant, once the present complaint was communicated to it. Its failure to do so earlier is discussed in point B below.

29. In his complaint, the complainant voiced a suspicion that the way in which Fusion for Energy handled his application might have been due to his age. The Ombudsman has consistently taken the view that the Community institutions and bodies must avoid any discrimination on the grounds of age. He therefore invited Fusion for Energy to provide him with precise information on this issue in order to allow him adequately to address the complainant's concerns. The Ombudsman is pleased to note that the information provided by Fusion for Energy does not confirm the complainant's suspicion. As Fusion for Energy has correctly observed, procedures for selecting staff at the AD 6 level are likely to attract many young candidates, given that the length of professional experience required for such positions is fairly limited. The Ombudsman further notes that the complainant successfully passed the selection procedure carried out in 2007 and was placed on a reserve list, together with seven (7) other candidates. Given that only two (2) of these candidates appear to have been recruited by Fusion for Energy so far and that the rejection of the complainant's application in the 2008 selection procedure was based on a formal requirement, there is nothing to suggest that there was any discrimination on the grounds of age.

30. In view of the above, no maladministration is found as regards the way in which Fusion for Energy handled the complainant's application for the position of "Legal Advisor for Contracts Negotiations".

B. Allegation of failure to reply to two e-mails

31. The complainant alleged that Fusion for Energy failed to reply to his e-mails of 22 May and 16 August 2008.

32. In its opinion, Fusion for Energy stated that it attached great importance to relations with citizens and that one of its first decisions had therefore been to adopt a code of good administrative behaviour. Fusion for Energy added that requests were therefore handled with utmost readiness and care, in particular those concerning subjects related to human resources. As regards the present case, Fusion for Energy pointed out that there was no trace of the complainant's e-mail of 22 May 2008 in its e-mail boxes or servers. Fusion for Energy acknowledged, however, that the complainant's e-mail received in August 2008 had remained unanswered. It apologized to the complainant for this unfortunate incident and assured the Ombudsman that appropriate measures had been taken to avoid similar problems in the future.

33. The Ombudsman notes that the complainant has not disputed Fusion for Energy's statement that there was no trace of his e-mail of 22 May 2008 in its e-mail boxes or servers. As regards the e-mail of 16 August 2008, the Ombudsman takes the view that Fusion for Energy's failure to reply to it within a reasonable period of time constituted an instance of maladministration. The Ombudsman notes, however, that Fusion for Energy has apologized to the complainant for this omission and made it clear that appropriate measures had been taken to avoid similar problems in the future.

34. In view of the above, the Ombudsman takes the view that there are no grounds for further inquiries into this aspect of the case.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

No maladministration is found as regards the way in which Fusion for Energy handled the complainant's application for the position of "Legal Advisor for Contracts Negotiations". As regards its alleged failure to answer the complainant's e-mails, there are no grounds for further inquiries.

The complainant and Fusion for Energy will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 23 July 2009

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[1] OJ 2007 L 90, p. 58.