Strasbourg, 16 December 2004

Dear Mr A.,

On 4 March 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning open competition EPSO/A/11/03.

On 22 March 2004, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 29 June 2004. I forwarded it to you with an invitation to make observations, which you sent on 30 August 2004.

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

THE COMPLAINT

In March 2004, a complaint was made to the Ombudsman against the European Personnel Selection Office (hereafter "EPSO") concerning open competition EPSO/A/11/03.

According to the complainant, the relevant facts are the following:

The complainant, who at the time of the complaint worked for the UN in Kosovo, had been invited by EPSO to sit the pre-selection and written tests for the competition in Thessaloniki, Greece, on 12 March 2004. However, on 4 March 2004, the complainant sent an e-mail to EPSO, explaining that, on 11 March, he would take part in a selection board and a very important meeting within the Department of Justice in Pristina and that his superiors had ordered him to be in Pristina that day. He could therefore not be in Greece in time for the tests on 12 March and he therefore wished to sit the tests in the premises of the EU mission in Pristina. He explained that there was an ongoing very important and large EU mission in Kosovo and that there were many EU facilities that could be used for him to take the test. He also named two EU officials whom EPSO could contact in order to arrange the proper conditions for him to do the tests.

On the same day (4 March 2004) he received a reply from EPSO, stating that to ensure total transparency and equal opportunities, tests are organised in well-defined examination centres in the EU Member States only and that no exceptions can be made.

The complainant immediately replied that he could not see any problem with transparency or equal opportunities if he would be allowed to sit the tests in the EU premises in Pristina. He also pointed out that the region in question was under interim administration by, among others, the EU. He considered EPSO's refusal to let him sit the tests in Pristina to be unfair.

The complainant alleges that EPSO acted unfairly by not letting him sit the pre-selection and written tests in competition EPSO/A/11/03 in the premises of the EU mission in Pristina, Kosovo.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO makes, in summary, the following comments:

The complainant, who took part in open competition EPSO/A/11/03, contacted EPSO on 26 January 2004, to inform the institution that he had started working in Pristina, Kosovo, and therefore could not be required to go to Portugal, his place of residence, to sit the pre-selection tests. In its reply of 16 February 2004, EPSO therefore asked him to go to the examination centre closest to his place of work, i.e. Thessaloniki, Greece, to sit the pre-selection tests and written examination on 12 March 2004.

On 4 March 2004, the complainant informed EPSO that because of work commitments he would not be able to come to Greece in time for the tests on 12 March 2004. He pointed out, however, that there was a European mission in Pristina where he could sit the tests. By return e-mail, EPSO informed the complainant that the pre-selection tests were being held on the same day at specific examination centres located only in the EU Member States and that it was not possible to make an exception in his case.

EPSO argues that a competition is a special kind of examination to the extent that, in order to comply with the principle of equal treatment, candidates are required to sit the tests and examinations at the same time on the same day and using the same examination papers. Otherwise there is a risk that candidates could be treated unequally and that candidates could leak information about the examination to other candidates who have not yet taken the examinations, which could result in disputes, appeals or even cancellations of examinations.

EPSO argues that in order to comply with the principle of equal treatment, each candidate is asked to go to the examination centre located nearest to the address he or she gave when applying for the competition, in accordance with point C.2 of the notice of competition concerned. Candidates who, for compelling reasons, are unable to go to the nearest examination centre could ask to go to another centre, subject to availability. The complainant was therefore allowed to change examination centre to Thessaloniki, Greece.

EPSO adds that it is important to bear in mind the major organisational problems that arise due to the fact that hundreds, if not thousands, of candidates are invited to sit the tests and examinations (approximately 14 500 candidates for open competition EPSO/A/11/03): printing and delivering test papers to the various examination centres, ensuring a sufficient number of examination papers for each language, reserving examination rooms, organising invigilators, etc.

EPSO stresses that every candidate must be treated in the same way, thus respecting the principle of equal treatment. For this reason, all requests to change examination centre must be examined under the same conditions, meaning that a candidate's request to sit his test in the town of his choice, but not in one of the examination centres reserved by EPSO, cannot be taken into consideration. If EPSO had accepted the complainant's request, it would have been obliged - in all fairness - to agree to all similar requests from other candidates, because EPSO cannot treat one candidate more favourably than others.

EPSO further argues that it is physically impossible to organise tests and examinations in more than 130 Commission delegations worldwide. Because of the location of certain delegations some candidates would be obliged to sit tests and examinations at night in order for the tests to be held simultaneously. Furthermore, if, at an examination centre in one delegation, some of which are located in sensitive areas, a problem were to arise because of the national situation in that country, it would be necessary to declare all the examinations null and void to ensure that all candidates were treated equally. In the interest of good administration, and in view of the disproportionate costs which organising competitions under these conditions would entail, EPSO does not consider this a feasible option.

The complainant's observations

In his observations, the complainant maintains his complaint and makes the following additional remarks:

The complainant finds it difficult to understand EPSO's argument that the principles of equal treatment and transparency could be violated if one single candidate could sit his or her test at the same time as other candidates, but in other EU premises with EU invigilators. This would not jeopardise the other candidates' chances. EPSO's decision would be understandable only if his request had been to sit the test where there was no EU mission. Kosovo is located in Europe, in the same time zone as Brussels, and has one of the larger EU missions in the world with several EU premises and numerous senior staff. In addition, the situation in the area was not sensitive or problematic at the time.

THE DECISION

1 The allegedly unfair decision not to let the complainant sit tests in Kosovo

1.1 The complaint concerns open competition EPSO/A/11/03, in which EPSO invited the complainant to sit the pre-selection and written test in Thessaloniki, Greece, on 12 March 2004. On 4 March 2004, the complainant, who at the time worked for the UN in Kosovo, sent an e-mail to EPSO, explaining that he had to be in Pristina on 11 March due to work commitments and that he could therefore not be in Greece in time for the tests on 12 March. Instead he wished to sit the tests in the premises of the EU mission in Pristina, Kosovo. EPSO refused to allow him to sit the tests in Pristina, stating that to ensure total transparency and equal opportunities, tests are organised in well-defined examination centres in the EU Member States only.

The complainant alleges that EPSO acted unfairly by not letting him sit the pre-selection and written tests in competition EPSO/A/11/03 on the premises of the EU mission in Pristina, Kosovo.

The complainant argues that the principles of equal treatment and transparency would not be violated if one single candidate could sit his or her test at the same time as other candidates, but in other EU premises with EU invigilators. This would not jeopardise the other candidates' chances. Furthermore, Kosovo is located in Europe, in the same time zone as Brussels, and has one of the larger EU missions in the world with several EU premises and numerous senior staff.

1.2 EPSO argues that in order to comply with the principle of equal treatment, candidates are required to sit the tests and examinations in competitions at the same time on the same day and using the same examination papers. Tests and examinations are held at specific examination centres located in the EU Member States only. Each candidate is therefore asked to go to the examination centre located nearest to the address he or she gave when applying for the competition. Candidates who, for compelling reasons, are unable to go to the nearest examination centre could ask to go to another centre, subject to availability. Every candidate must be treated in the same way and all requests to change examination centre must therefore be examined under the same conditions. A candidate's request to sit his test in the town of his choice, but not in one of the examination centres reserved by EPSO, cannot be taken into consideration. If EPSO had accepted the complainant's request, it would have been obliged - in all fairness - to agree to all similar requests from other candidates, because EPSO cannot treat one candidate more favourably than others. Competitions with thousands of participants imply major organisational problems and it is physically impossible to organise simultaneous tests and examinations in more than 130 Commission delegations worldwide. In the interests of good administration, and in view of the disproportionate costs which organising competitions worldwide would entail, EPSO does not consider this a feasible option.

1.3 The Ombudsman notes that the complainant's allegation that EPSO acted unfairly appears to be based on the argument that EPSO should have taken into account the complainant's special circumstances by allowing him to sit the tests in Kosovo and that the principles of equality and transparency did not prevent EPSO from doing so.

1.4 The Ombudsman first points out that the notice of competition(1) published by EPSO clearly envisages that tests are held simultaneously for all applicants at one or more centres in the European Union(2). The Ombudsman therefore takes the view that by rejecting the complainant's request to sit his tests in Kosovo, EPSO acted in accordance with a rule laid down in the notice of competition, which, according to established case law, is binding.

1.5 The Ombudsman considers, however, that it should also be examined whether the above-mentioned rule governing the arrangement of tests may be unfair in itself by failing to provide sufficient flexibility to allow EPSO to have due regard for the interests of candidates. In this regard, the Ombudsman recalls that the principle of non-discrimination requires both that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations proportionate to the aim legitimately pursued(3).

1.6 The Ombudsman points out that the notice of competition permits a candidate who has changed his or her residence also to change examination centre(4). Moreover, the notice of competition appears to allow a flexible approach to the needs of disabled candidates(5). The Ombudsman therefore considers that EPSO has made provision for responding to certain objective differences in the situation of candidates.

1.7 The Ombudsman accepts that the large scale of competitions imposes significant organisational constraints on EPSO, given that tests must run smoothly and simultaneously in many different locations and the need for EPSO to maintain the confidence of candidates, the public and the institutions by demonstrating that its procedures are transparent and ensure equality of treatment.

1.8 The Ombudsman therefore considers that EPSO's solution to hold tests and examinations at specific examination centres located in the EU Member States, subject only to the exceptions mentioned in point 1.6 above, appears to strike a reasonable balance between the public interest and the interests of individual candidates.

1.9 In view of the above, the Ombudsman does not consider that EPSO acted unfairly when dealing with the complainant's request. The Ombudsman therefore finds no maladministration by EPSO.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2003/C 180/10.

(2) Point B.4 of the notice of competition.

(3) Case C-148/02, Carlos Garcia Avello v Belgian State, Judgement of the Court of 2 October 2003, not yet reported in the ECR.

(4) Point C.2 of the notice of competition.

(5) Point C.1 of the notice of competition.