Strasbourg, 30 June 2005

Dear Mr G.,

On 16 April 2004, you lodged a complaint with the European Ombudsman against the European Personnel Selection Office (EPSO), concerning its refusal to reimburse you for the travel expenses incurred as a result of your participation in open competition COM/A/10/01.

On 18 March 2002, you had lodged a previous complaint with the Ombudsman (reference number 503/2002/JMA) regarding the same subject matter. It was considered inadmissible on 26 March 2002 since, from the information submitted, it appeared that no previous administrative approaches had been made.

On 29 September 2003, I forwarded your complaint to the Director of EPSO with a request for an opinion. Even though the request was addressed to EPSO, the opinion on the complaint was sent to me by the Commission on 31 August 2004, as it appears that formally this competition was organised by the Commission. I have therefore treated your complaint as being against the Commission as well as against EPSO. On 30 September 2004, I forwarded the Commission's opinion to you with an invitation to make observations. On 10 October 2004, you sent me your observations on the Commission's opinion.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your case.

THE COMPLAINT

The facts of the case are, in summary, as follows:

On 18 March 2002, the complainant first lodged a complaint with the Ombudsman against the European Commission. The complaint was registered under file number 503/2002/JMA. In his complaint, the complainant explained that he had applied to participate in open competition COM/A/10/01, organised by the European Commission for the establishment of a reserve list of administrators in the field of law. On 15 March 2002, he was invited to take part in the competition's pre-selection tests. Since the examination centre in France had been established in Paris, the complainant had to travel there from his place of residence in the city of Aix-en-Provence. Unlike previous competitions held in the recent past, the complainant was not reimbursed for his travel expenses. In his view, this decision discriminated against those candidates who did not reside in Paris, and had to travel from distant places at their own expense.

Since the complaint did not appear to have been preceded by any administrative approaches towards the institution concerned, as required by Article 2 (4) of the Statute of the European Ombudsman, it was declared inadmissible on 26 March 2002. In his letter, the Ombudsman suggested that the complainant should contact the responsible Commission services, and that he could consider submitting a new complaint if the reply from the institution were to be unsatisfactory.

On 16 April 2004, the complainant wrote again to the Ombudsman. In his new letter he stated that, on 12 March 2004, he had asked the Commission to reconsider its decision. The reply furnished by EPSO merely referred him to the Notice of the competition without any further explanation. Moreover, the letter had been written in English, whereas the language of his initial query was French.

Taking into consideration the new evidence, the Ombudsman decided to register the complainant's letter as a new complaint (reference 1158/2004/JMA), and started an inquiry. The allegations on which the Ombudsman asked for an opinion were the following:

The complainant alleged that the decision not to reimburse his travel expenses,

1. was not properly reasoned; and
2. was drafted in English, whereas he had written in French.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission first described the factual background to the case. It noted that, following the complainant's application to take part in open competition COM/A/10/01 for the establishment of a reserve list of administrators in the field of law, he was invited to participate in the pre-selection tests. This first stage of the competition was to be held on the same day, namely on 15 March 2002, in all the Member States. In France, the examination centre was established in Paris.

On 12 March 2004, the complainant addressed a complaint to the Commission concerning the fact that his travel expenses had not been reimbursed by the institution. As matters pertaining to the EU's recruitment procedures had been transferred to EPSO at the time, the Commission forwarded the complainant's request to this body. EPSO replied on 26 March 2004, referring the complainant to the relevant provision of the Notice of the competition, published in Official Journal C240A.

The Commission explained that competition COM/A/10/01 had been opened to citizens from all the then fifteen Member States. In order to ensure an efficient management of resources, an examination centre had been established in each of the Member States. As set out in the criteria agreed by all the EU institutions, the amount to be reimbursed to candidates would be related to the stage of the competition. In application of these criteria, no expenses would be reimbursed in the pre-selection tests, whereas candidates would have the right to claim a lump sum for expenses incurred in connection to the written and oral tests. The Guide to the competition included a clear provision in that regard. Similarly, the same conditions were stated in the acknowledgement of receipt sent to the complainant following his application to the competition.

As regards the language of the reply to the complainant, the Commission acknowledged, on behalf of EPSO, the error made. It noted that the responsible person in EPSO had sent a letter in English to avoid any further delay. However, EPSO would send a copy of that letter in French to the complainant as soon as possible.

The complainant's observations

In his observations on the Commission's opinion, the complainant repeated the allegations made in his complaint. He stressed that the system discriminates against candidates who do not live near the places where the competition is due to be held, in particular in large countries such as France.

THE DECISION

1 Alleged lack of reasoning in EPSO's reply

1.1 The complainant alleges that the decision not to reimburse the travel expenses incurred to take part in the pre-selection test of open competition COM/A/10/01 was not properly reasoned.

He argues in this context that the decision discriminates against candidates who do not reside near the places where the competition is to be held.

1.2 The Commission argues that the decision not to reimburse candidates in open competition COM/A/10/01 for their travel expenses was in accordance with the criteria agreed by all the EU institutions. This provision had been clearly stated in the Guide to the competition as well as in the acknowledgement of receipt sent to the complainant.

The Commission notes that this decision was aimed at ensuring an efficient management of resources, whereby the amount to be reimbursed to candidates in recruitment proceedings would be related to the stage of the competition. In application of these criteria, no expenses would be reimbursed in the pre-selection tests. The institution points out that candidates to this fists stage of the competition were able to take the tests in their country of residence, since examination centres had been established in all the Member States. As regards the written and oral exams, candidates would have the right to claim a lump sum for expenses incurred in connection with these tests.

This provision was clearly stated in the Guide to the competition. Similarly, the same condition had been included in the acknowledgement of receipt sent to the complainant following his application to the competition.

1.3 The Ombudsman notes that the Guide for applicants published with the Notice of open competition COM/A/10/01(1), refers to the conditions for the reimbursement of travel and subsistence expenses applicable to all candidates to the competition. Point III.3 establishes that:

"[Candidates] will be entitled to a flat-rate contribution towards travelling and subsistence expenses, and [...]will be notified of the applicable rates and the procedure to follow [...]. However, no contribution will be provided towards any travelling and subsistence expenses associated with the pre-selection tests."

1.4 The Ombudsman notes that EPSO made a clear and unequivocal reference to this legal provision in its reply to the complainant's query dated 26 March 2004(2).

1.5 As regards the alleged discrimination which this measure could have given rise to, the Ombudsman is mindful of the fact that the principle of non discrimination and of equal treatment is one of the fundamental principles of Community law. As consistently held by the Community Courts, it requires that comparable situations should not be treated in a different manner and different situations should not be treated alike unless such treatment is objectively justified(3).

1.6 The Ombudsman notes that, in this case, the alleged discrimination would have resulted from the different treatment of candidates depending on whether or not they live near the place where the examination in each Member State is held, since those living far away from it are subject to greater travel expenses. It appears that the Commission has justified this practice on the grounds of efficient management of resources, whereby the amount to be reimbursed to candidates would be directly related to the advanced stage of the competition. Thus, no expense would be reimbursed at the first stage, namely the pre-selection tests.

In view of the large number of candidates who nowadays apply to open competitions and are subsequently admitted to the pre-selection tests, it appears reasonable that the organising institution chose not to reimburse candidates for their travel expenses on the basis of an objective reason, namely the significant financial impact that any such reimbursement would entail. Regard has to be had to the fact that, in this case, the organising institution appears to have taken measures to limit the potential different treatment of candidates by establishing one examination centre in each of the Member States, and by applying this measure only to the first stage of the competition.

The Ombudsman is not aware of any rule or principle which requires the Commission to reimburse the travel expenses of candidates in competitions. Since the Commission’s decision not to reimburse candidates taking part in the pre-selection tests of the competition seems reasonable on financial grounds, the Ombudsman does not consider that the complainant’s arguments concerning discrimination cast any doubt on the adequacy of the Commission’s reasoning.

The Ombudsman notes that the Commission has clearly informed candidates of the rules concerning reimbursement of travel expenses, both at a general level through the Notice of the competition published in the Official Journal, and individually, through the acknowledgements of receipt.

The Ombudsman has therefore concluded that there appears to be no maladministration as regards this aspect of the case.

2 Language of reply to the complainant

2.1 The complainant alleges that the reply sent to him was drafted in English, whereas the language of his initial request was French.

2.2 The Commission has acknowledged, on behalf of EPSO, the error made by EPSO's services by sending a letter in English to the complainant. It explains that EPSO sent a letter in English in order to avoid any further delay. The Commission notes, however, that EPSO has undertaken to send a copy of its reply in French to the complainant as soon as possible.

2.3 The Ombudsman notes that the Commission's Code of Good Administrative Behaviour(4) addresses the standard of conduct which officials are expected to follow when replying to correspondence from citizens in point 4 of its Annex.

This provision states that:

"In accordance with Article 21 of the Treaty establishing the European Community, the Commission shall reply to letters in the language of the initial letter, provided that it was written in one of the official languages of the Community."

2.4 The Ombudsman is mindful of the fact that the Commission, on behalf of EPSO, has acknowledged the mistake of EPSO's services, and that it has noted EPSO's undertaking to correct such mistake. In view of the situation, the Ombudsman does not consider it justified to pursue any further inquiries as regards this aspect of the case.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration as regards the complainant’s first allegation and no further inquiries appear to be justified as regards the complainant’s second allegation. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ C 240A of 28.8.2001, p. 1.

(2) "According to the Official Journal C 240 A, I can inform you that no contribution is provided towards the travelling and subsistence expense associated with the pre-selection tests. Please see the enclosed copy".

(3) Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25, and Case C-15/95 EARL de Kerlast [1997] ECR I-1961, paragraph 35- Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 97.

(4) Commission Decision of 17 October 2000 amending its Rules of Procedure (2000/633/EC, ECSC, Euratom); OJ L 267/63 of 20.10.2000