The background to the complaint

1. The complainant, a Parliament official, took personal leave, which was intended to expire at the end of September 2010. In January 2010, Parliament published a vacancy notice for a post of an assistant in Parliament's information office in Ljubljana. The complainant applied for this post. The interviews took place in February 2010. According to the vacancy notice related to that post, it was desirable for the candidates to have had a three-year professional experience as officials in the EU institutions[1].

2. On 3 June 2010, the complainant learnt that he had not been chosen for the post. The successful candidate, Mr X., was to commence his duties on 1 October 2010.

3. On the same day, the complainant wrote to Parliament, to express his concerns about the lack of transparency in relation to the selection procedure and to ask for more information in this respect.

4. On 28 June 2010, Parliament replied that the complainant did not meet the published criteria for the post in question, and that his leave on personal grounds did not confer any priority to his application.

5. On 26 July 2010, the complainant asked for a copy of the report/minutes of his interview for the post in question.

6. On that same day, Parliament's administration answered that the report/minutes requested contained confidential information, as it included data of other candidates and that for this reason its Human Resources Unit was not in a position to comply with the complainant's request. It also took the view that the information that had been transmitted by e-mail on 28 June 2010 was sufficient because the complainant's results were communicated to him.

7. On 9 August 2010, the complainant lodged, on the basis of Article 90(2) of the Staff Regulations, an internal complaint against the decision rejecting his application. The complainant also requested to receive the documents directly related to the evaluation of his interview.

8. On 9 December 2010, the Secretary-General of Parliament replied to the complaint. He confirmed Parliament's refusal to grant the complainant access to the documents concerning the selection procedure as such (list of candidates, minutes of the meeting of the selection committee and suggested order of candidates). He explained that the proceedings of the selection committees were secret. However, he satisfied the complainant's request to receive the documents related to the assessment of his interview and enclosed "the relevant excerpts of the minutes of the selection committee" ('the excerpt of the evaluation document')[2]. The Secretary General informed the complainant that he had dismissed the remainder of the complaint. More particularly, the Secretary General pointed out that, even though the selection committee's opinion is to be duly taken into consideration, the Appointing Authority conducts its own assessment as to how best to meet the interest of the service. Concerning the post in question, the Appointing Authority considered that another candidate's professional experience in Parliament dated from an earlier point in time and lasted longer than the complainant's. Thus, the complainant's leave on personal grounds was not a direct reason for not appointing him to the vacant post. The Appointing Authority had therefore not made any manifest error of assessment by giving precedence to Mr X's application. The complainant could not benefit from Article 40(4)(d) of the Staff Regulations[3] since his leave on personal grounds had not yet expired. For those reasons, the Secretary-General concluded that the complainant had not been treated unfairly, and that the Appointing Authority's decision was not tainted by any manifest error of assessment.

9. On 22 May 2012, the complainant lodged a complaint with the Ombudsman. He reiterated his view that he was the most highly ranked candidate based on the selection board's decision and thus, the most suitable candidate for the post. In his view, the decision taken was not in the interest of the service. With regard to the Secretary-General's statement that another candidate had more professional experience and that Parliament had not committed a manifest error of assessment, the complainant expressed his concerns that the document provided by the Secretary-General was not the original assessment by the selection board. He added that professional experience was not the only criterion for the selection of candidates. There were other, more important criteria, which, however, were disregarded in the final decision. In his view, if all relevant criteria had been considered, the final decision would have been different. The complainant also challenged the Secretary-General's statement that his leave on personal grounds was not a direct reason for not appointing him to the vacant post; in his view, it was an indirect reason that was against the rules of Parliament and equal opportunities provisions. The complainant explained that he had never asked for any precedence to be given to his application; he had only expressed the concern that his application would not be treated equally because he was on leave. As far as the urgency to fill the new post was concerned, the complainant pointed out that, in fact, the selected applicant only began to work in September 2010, which was the month that his leave on personal grounds expired.

The subject matter of the inquiry

10. The Ombudsman decided to open an inquiry into the following allegation and claim:

Allegation:

Parliament failed to carry out correctly the selection procedure, in which the complainant participated.

Supporting arguments

In support of this allegation, the complainant put forward that Parliament: (i) disregarded the opinion of the selection board, (ii) did not treat his application on the same basis as other applications because he was on leave on personal grounds and considered that circumstance as an obstacle when assessing his application, and (iii) wrongly took into consideration only one criterion, that is professional experience, while ignoring other criteria that were in the complainant's favour.

Claim:

The complainant claimed that Parliament should offer the published post in Parliament's Information Office in Ljubljana to the best candidate.

The inquiry

11. On 20 June 2012 the Ombudsman asked the complainant to clarify certain aspects of his complaint and to submit additional documents. For this reason, he opened a clarificatory inquiry.

12. On 24 September 2012, following the complainant's submissions and clarifications, the Ombudsman informed Parliament that his services would inspect Parliament's file concerning the relevant recruitment procedure. The Ombudsman informed the complainant and Parliament that, once he had received and examined the complainant's observations on the inspection report or once the relevant deadline had expired, he would decide whether to request an opinion from Parliament.

13. On 1 October 2012, the inspection took place at Parliament's premises.

14. On 15 October 2012, the Ombudsman invited the complainant to submit observations on the inspection report.

15. On 29 November 2012, the complainant sent his observations to the Ombudsman.

The Ombudsman's analysis and conclusions

Allegation that Parliament failed to carry out correctly the selection procedure and related claim

Arguments presented to the Ombudsman

The complaint

16. In his complaint, the complainant suggested that, although he was the best candidate in the selection board's assessment, that board's choice was overruled by the Appointing Authority. He alleged that Parliament had wrongly considered professional experience as the only relevant criterion for choosing the successful candidate while ignoring other criteria, which were in his favour. He also appeared to consider that he was treated unequally because he had been on leave for personal reasons.

The Ombudsman's clarificatory inquiry

17. The Ombudsman decided to ask the complainant for clarifications on the following questions:

"1. You seem implicitly to consider that you were the best candidate in the selection board's eyes, but that the selection board's choice was subsequently overruled by the Appointing Authority. Parliament's Secretary-General pointed out the Appointing Authority was not bound to observe the ranking order established by the selection board. More importantly, the Secretary-General provided you with [the excerpt of the evaluation], from which it emerges that the selection board has decided that Mr X was the best candidate and that it had ranked you as second. Could you please comment on these points?

2. You alleged that Parliament wrongly considered professional experience as the only relevant criterion for choosing the successful candidate and ignored other criteria, which were in your favour. Nevertheless, it would appear to me that a number of observations need to be made in this respect. First, I have so far not been provided with a copy of the relevant vacancy notice or a list of the relevant selection criteria for the vacancy in question and thus cannot establish what the relevant criteria were. Second, the selection board recorded in its minutes that "Après un examen comparatif entre les candidats, se détachent les profils de [complainant] et de [Mr X]", which would seem to suggest that the selection board applied the relevant selection criteria to all candidates and that, as a result of that exercise, your profile as well as that of Mr X. stood out. Third, the professional experience and the urgency to fill the post would seem to have been merely the decisive criteria applied to establish a difference between the two best candidates, that is, you and Mr X. Fourth, the selection board noted two reasons for which it considered that Mr X. was the better candidate: (i) the professional experience and (ii) the urgency to fill the post. You argued that Mr X. only commenced her duties on 1 October 2010, which would at first sight not fit easily with the aforementioned urgency. However, you do not appear to argue that Mr X. had less professional experience than yourself. In view of the foregoing observations, I would like to draw your attention to the fact that an instance of maladministration could only be found, if it were shown that, in relation to the selection procedure at issue, Parliament has violated applicable procedural rules, misused its power or committed a manifest error or assessment. Bearing in mind the points set out above, I would be grateful if you could explain why you consider that an instance of maladministration was committed.

3. You appear to consider that you were treated unequally because you were on leave for personal reasons. In this context, I noted that you stated that you did not argue that Parliament had wrongly failed to give precedence to your application pursuant to Article 40(4)(d) of the Staff Regulations. In your complaint pursuant to Article 90(2), you referred to correspondence with Parliament's services, which supposedly proved that the fact that you were on leave on personal grounds had an impact on the assessment of your application. However, in your complaint to me you did not set out how this unequal treatment had manifested itself and you did not provide me with relevant evidence to support that argument. Therefore, I would kindly invite you to do so."

The complainant's reply to the clarificatory inquiry

18. In his reply to the Ombudsman's questions, the complainant first explained that the excerpt of the evaluation by the selection committee was not the same document as the ranking of candidates on the basis of interviews and examination of CVs by the selection board. [4] He submitted that the ranking was first provided by the selection board which consisted of two persons who conducted the interviews and that each of the selection board members provided his or her own ranking list of the most suitable candidates to the Appointing Authority. The complainant explained that an interview of the selection board members would reveal that he was ranked first by both members. He also implied that the Appointing Authority disregarded the opinion of the two persons who had interviewed all the candidates and offered the position to the candidate who had the longer professional experience in the European Parliament, which was not a criterion according to the notice of vacancy. The complainant considered that the Appointing Authority disregarded all other criteria and doubted whether, in the end, the interviews played any role at all.

19. The complainant agreed with the Ombudsman that it followed from the minutes of the selection board that professional experience and the urgency to fill the post were indeed the most important criteria in the end. However, he pointed out that these two criteria were not mentioned in the notice of vacancy and explained that the selection board disregarded other criteria mentioned in the notice of vacancy. He acknowledged that he was not able to question the professional experience of the selected candidate because he did not have access to her personal data, but again contested the criterion of the urgency to fill the post as his leave on personal grounds had ended by the time the selected applicant was to commence her duties. Moreover, the complainant argued that leave on personal grounds did not exclude the possibility for someone to apply for a vacancy and that such candidates needed to be treated equally. He considered that his application was not treated equally because the selection board disregarded the criteria in the notice of vacancy and relied on the "urgency to fill the post" as a decisive criterion, which implied that due to his leave on personal grounds, he was not able to commence his duties on time.

20. The complainant also reiterated that because his leave on personal grounds had not expired Parliament's services had actually taken it into consideration for no reason at all.

The inspection of Parliament's file

21. The Ombudsman's representatives asked Parliament for the minutes of the selection board meeting or a report established by it which would include its evaluation of the eight internal candidates who took part in the selection procedure. Parliament's representatives replied that the only document in their possession concerning the evaluation of the candidates was the document containing the excerpt which had already been disclosed to the complainant. They added that there were no other notes, minutes or reports concerning the evaluation of candidates. The Ombudsman's representatives asked if, as the complainant had seemed to suggest, there had been both a selection committee and a selection board. Parliament's representatives explained that there was only a single body examining the applications and that this body was either referred to as "board" or as "committee".

22. With regard to "professional experience", Parliament's representatives explained that this requirement was listed in the notice of vacancy and that those candidates with longer professional experience as EU officials would have an advantage in that regard. The Ombudsman's services noted that the successful candidate had had more than three years of professional experience as an EU official and that, even if the complainant's leave on personal grounds had been counted as professional experience, he would not have had a longer professional experience than the successful candidate. Moreover, as regards the urgency to fill the post, Parliament explained that, whilst that criterion might not have been explicitly mentioned in the notice of vacancy, it was up to the Directorate-General concerned, in this case the Directorate-General for Communication, to assess to what extent such urgency existed.

23. As to the fact that the successful applicant commenced her duties on a date by which the complainant's leave on personal grounds would also have ended, Parliament pointed out that this was coincidental. They explained that successful candidates are in practice given sufficient time in advance (one to three months) to prepare for their move to the new post. In this case, what counted was not when the successful candidate took up his duties, but when he was informed that he was successful and asked to indicate when he could start working. The Ombudsman's representatives also asked about an e-mail in which it was suggested that the complainant did not fully meet the requirements of the notice of vacancy and where the issue of the complainant's leave on personal grounds was raised. Parliament's representatives took the view that the complainant did indeed not fully meet the criterion of a three-year professional experience as an EU official. Furthermore, they explained that it was the complainant himself who had first invoked the issue of his leave on personal grounds in his correspondence with Parliament's services, and that the above-mentioned e-mail was intended to provide the complainant with more precise information on that matter.

The complainant's observations on the inspection report

24. In his observations on the inspection report, the complainant, in essence, argued that he was not aware who the members of the selection committee were, and that it was probably composed of members who had never met the candidates and had had no opportunity to verify their competences. He found it hard to believe that two candidates came out of the interviews with identical results and that only some technicality (the desired professional experience) became the decisive factor distinguishing them.

25. He stated that, although the vacancy notice referred to three years of experience as an official of the institutions of the EU, this was not stipulated either as an advantage or as a condition. For him, professional experience should have been considered as less important a criterion than most of the other competences.

26. The complainant also emphasized that his leave on personal grounds could have been shortened and that Parliament had not considered the possibility of reinstating him before the expiration of his leave on personal grounds.

27. The complainant also stated that it was Parliament's e-mail of 28 June 2010 in which the issue of the leave on personal grounds was first mentioned.

The Ombudsman's assessment

Introductory remarks

28. At the outset, the Ombudsman would like to point out that Parliament had a wide margin of discretion in deciding on the candidate with whom to fill the vacant post. In these circumstances, an instance of maladministration could only be found, if it were shown that, in relation to the selection procedure at issue, Parliament has violated applicable procedural rules, misused its power or committed a manifest error or assessment. The Ombudsman notes that the complainant did not invoke any breach of a specific procedural rule by Parliament, nor did he allege misuse of power by the latter. Therefore, the issue to be examined here is whether Parliament, by choosing Mr X. instead of the complainant, committed a manifest error of assessment.

29. At the inspection, it emerged from the documents made available to the Ombudsman's representatives that the applications had been examined by a selection board composed of two members who had personally interviewed all eight candidates, including the complainant. There was thus no additional selection committee, as the complainant assumed there had been.

30. The complainant has put forward three arguments to support his allegation, namely, that Parliament: (i) disregarded the opinion of the selection board, (ii) did not treat his application on the same basis as other applications because he was on leave on personal grounds and considered that circumstance as an obstacle when assessing his application, and (iii) wrongly took into consideration only one criterion, that is professional experience, while ignoring other criteria that were in the complainant's favour. The Ombudsman will deal with these arguments successively.

On the substance

(i) The alleged disregard for the opinion of the selection board

31. The complainant basically claims that he was the best candidate and that this opinion, which was allegedly shared by the selection board, had been disregarded by the Appointing Authority.

32. The complainant did not present any elements that would support that statement. It appears useful to note that the Ombudsman's services inspected Parliament's file and found no indications that the complainant had at any point been considered to be the single best candidate. Instead, the evidence suggests that the selection board, after having evaluated all candidates, considered the complainant and Mr X as being the two best candidates.[5] Therefore, no order based on merits appears to have been established between the complainant and Mr X. Besides, it is useful to note that, even if the complainant's assumption had been correct, the Appointing Authority would not have been bound by the opinion of the selection board, and it was in its discretion to give preference to a candidate that was not the selection board's first choice, unless it committed a manifest error of assessment in doing so. Therefore, the complainant's first argument is not well-founded.

(ii) The alleged unequal treatment due to the complainant's leave on personal grounds

33. The complainant appears to consider that he was treated unequally due to his leave on personal grounds. From the available information, it appears that the issue of the complainant's leave on personal grounds was first invoked by Parliament.

34. Whilst it appears that Parliament merely intended to provide additional contextual information to the complainant with regard to his administrative situation, this might have led to a misunderstanding in the subsequent exchanges between the complainant and Parliament.

35. Irrespective of such a possible misunderstanding, it emerges from the excerpt of the evaluation that the "urgency to fill the post" was one of the two considerations (the other being "professional experience"), which tilted the decision in favour of Mr X. In the Ombudsman's view, an Appointing Authority can, with regard to considerations of the interest of the service, reasonably take into the fact that there is a need to fill a vacant position rapidly when it decides to give preference to one candidate over another. However, it appears that Mr X only commenced his duties on the same date as the complainant would have been able to do so, that is, on 1 October 2010. Whilst it cannot be excluded that, at the relevant time, Parliament may have assumed that Mr X would be able to commence his duties earlier than the complainant, the fact remains that, as the complainant correctly observed, Parliament would have had the possibility to shorten his leave on personal grounds. Thus, Parliament's argument that preference had to be given to Mr X. in view of the urgency to fill the post, does not appear convincing.

36. Nevertheless, given that Parliament invoked a second reason for giving preference to Mrs X's application, namely, his longer professional experience, it appears appropriate to turn to that criterion and thus to the complainant's third argument.

(iii) The allegedly wrongful reliance on a single criterion (i.e., professional experience)

37. The complainant suggested that Parliament wrongfully relied on a single criterion, namely, professional experience and disregarded other criteria that were in his favour.

38. The Ombudsman cannot agree with that argument for a number of reasons. First, the complainant did not put forward which specific criteria were allegedly disregarded by Parliament. Second, the Ombudsman notes that a selection procedure is a comparative exercise with regard to how the qualities and characteristics of individual candidates participating in the procedure best meet the conditions of the notice of vacancy. Thus, the assertion that some criteria might have been in the complainant's favour, does not exclude the possibility that they were also in other candidates' favour. Third, it emerges from the excerpt of the evaluation that, save for the "urgency to fill the post" and the criterion of professional experience, the complainant and Mr X were ranked equal.[6] In other words, it was only after having taken into account those two considerations, that Mr X was given a preference. Fourth, the notice of vacancy clearly stipulated that a professional experience of three years as an EU official was desirable. In the Ombudsman's view, the fact that such a professional experience was desirable also meant that in essence it was an advantage for the candidate having it. In that respect, it was confirmed that Mr X did, in fact, have a longer professional experience as an EU official than the complainant, even if his leave on personal grounds were to be taken into consideration in this context.

39. Therefore, the Ombudsman considers that it has not been established that Parliament wrongly applied the criterion of "professional experience" in the selection procedure in question.

Conclusion

40. In light of the above, the Ombudsman notes that, whilst Parliament's reliance on the urgency to fill the post was not convincing, its view that Mr X did have a longer professional experience as an EU official compared to the complainant was correct. Given that the vacancy notice had indicated that it was desirable for candidates to have had a three-year professional experience as officials in the EU institutions, Parliament's selection process does not appear to have been tainted by a manifest error of assessment. Therefore, the Ombudsman finds no maladministration with regard to the complainant's allegation. Consequently, the same conclusion must apply concerning the related claim.

Other issues

41. On the occasion of the inspection of Parliament's file in the present case, the Ombudsman's representatives found that the only document concerning the assessment of candidates that was available was the document (mentioned in point 8 above) containing the excerpt Parliament had already provided the complainant with. This document was an internal note by the Director-General of Communication to the Director-General of Administration dated 18 May 2010, which contained the appraisals of all the candidates. The file did not contain any documents on which this note no doubt was based, such as in particular the conclusions reached by the two persons who had interviewed all the candidates. However, ensuring that the procedural steps and stages are properly documented is an essential element in making sure that Parliament's recruitment procedures are properly handled. Doing so would also allow for easier investigations by the Ombudsman or judicial review by the Union's courts.

42. In light of the foregoing, the Ombudsman will make a further remark below.

B. Conclusions

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

No maladministration was found with regard to the complainant's allegation and claim.

The complainant and Parliament will be informed of this decision.

Further remark

Parliament could improve its internal recruitment procedures by ensuring that all the procedural steps and stages are properly documented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 16 July 2013