Strasbourg, 31 May 2005

Dear Mr X.,

On 26 May 2004, you made a complaint to the European Ombudsman concerning your participation in the oral test of an internal competition organised by the European Economic and Social Committee (ECOSOC).

On 7 June 2004, I forwarded the complaint to the Secretary General of ECOSOC, with a request for an opinion by 30 September 2004. On 19 October 2004, you sent a copy of the minutes of a hearing of 30 July 2004.

As ECOSOC had not sent an opinion by 30 September 2004, my services took contact with ECOSOC's services to inquire about the delay. ECOSOC informed my services that it had changed address and that it never received my letter of 7 June 2004. On 28 October 2004, I sent a new letter to the Secretary General of ECOSOC requesting an opinion by 31 January 2005. I informed you accordingly in my letter to you of the same day. On 6 December 2004, you sent a fax enclosing a recent letter received from ECOSOC.

ECOSOC sent its opinion on 26 January 2005. I forwarded it to you with an invitation to make observations if you so wished. No observations have been received from you. On 12 April 2005, you had a telephone conversation with my office.

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

THE COMPLAINT

According to the complainant the relevant facts are as follows:

The complainant participated in an internal competition organised by the European Economic and Social Committee (ECOSOC). The complainant participated in the oral test, but was finally not included in the reserve list, consisting of 7 successful candidates. His complaint concerns the procedure followed during the oral test. The complainant was the only candidate who took the oral test in Dutch. There were 5 Selection Board members, only one of whom spoke Dutch. However, during the oral test, the complainant's answers in Dutch (the bulk of the test) were not translated for the other members of the Selection Board, whereas for other candidates translation had been arranged.

On 24 November 2003, the complainant made an appeal on the basis of Article 90.2 of the Staff Regulations, alleging a) violation of the principle of equal treatment and b) irregular procedure, and asking for reconsideration of the decision not to put him on the reserve list. On 23 December 2003, the complainant also lodged a complaint with the European Ombudsman (ref. 0058/2004/OV) about the same matter. However, as the time-limit for the Appointing Authority to reply to the appeal had not yet expired, the Ombudsman informed the complainant that, on the basis of Article 2.8 of the Ombudsman's Statute, he had no power to deal with the complaint.

The complainant did not receive a reply from the Appointing Authority to his Article 90.2 complaint within the time-limit. On 29 April 2004, the complainant then wrote to the Appointing Authority considering that the absence of reply on his appeal was an implied decision rejecting it.

On 7 May 2004, the Secretary-General of ECOSOC wrote to the complainant informing him that, in order to take a decision in full knowledge of the file, he had decided to constitute an independent Committee to deliver an opinion on the complainant's appeal. On 26 May 2004, the President of that Committee invited the complainant on 2 June 2004 to provide further details concerning the two points of his appeal of 24 November 2003.

On 26 May 2004, the complainant made the present complaint to the Ombudsman. The complainant reiterated his allegations and also described the events that had preceded his participation in the competition: The complainant is responsible within ECOSOC for the purchasing of office furniture and supplies. According to the complainant, the person who subsequently appears to have served as the Dutch language member of the Selection Board, asked the complainant to order furniture for him privately, but the complainant refused to act accordingly, as this is against the rules. In the oral test, the complainant was questioned by that person in Dutch, but no translation was foreseen, so that the other Selection Board members had to trust what he told them.

The complainant's allegation and claim can be summarised as follows:

1. There was a procedural error and discrimination during the oral test, as no translation was foreseen for the complainant's answers, whereas this was the case for other candidates.

2. The complainant should be put on the reserve list which should consist of 8 and not 7 successful candidates(1).

On 19 October 2004, the complainant sent to the Ombudsman a copy of the minutes of the audition of 15 July 2004 in which he was heard by an independent committee.

On 6 December 2004, the complainant sent to the Ombudsman a copy of the opinion delivered by the independent committee on 30 September 2004. The complainant pointed out that, although a favourable follow-up was given to his complaint and he was accepted as an 8th successful candidate of the competition, the opinion did not comment on the procedural error which occurred during the oral test.

THE INQUIRY

ECOSOC's opinion

ECOSOC observed that the complainant and ECOSOC had agreed on a solution to the complaint concerning the complainant's participation in the internal competition. The complainant also informed ECOSOC that he renounced any other claim concerning the case and that he would inform the Ombudsman directly of his decision.

The complainant's observations

The complainant made no observations on the opinion of ECOSOC. In a telephone conversation with the Ombudsman's office on 12 April 2005, the complainant indicated that, although he had not yet been appointed, he was satisfied with ECOSOC's reaction and with the outcome of the present complaint.

THE DECISION

1 The alleged procedural error and discrimination and the claim to be put on the reserve list

1.1 The complainant alleges that there was a procedural error and discrimination during the oral test, as no translation was foreseen for the complainant's answers, whereas this was the case for other candidates. He claims that he should be put on the reserve list which should consist of 8 and not 7 successful candidates(2).

1.2 In its opinion, ECOSOC informed the Ombudsman that it had agreed with the complainant on a solution concerning his participation in the internal competition and that the complainant had informed ECOSOC that he renounced any other claim concerning the case.

1.3 The Ombudsman notes that, in its opinion of 30 September 2004, the independent committee which examined the complainant's complaint concluded that a favourable follow-up had to be given to it. As a result, the complainant was finally included as an 8th successful candidate on the reserve list of the competition.

1.4 In a telephone conversation with the Ombudsman's office on 12 April 2005, the complainant indicated that, although he had not yet been appointed, he was satisfied with ECOSOC's reaction and the outcome of the complaint.

1.5 On the basis of the above, the Ombudsman concludes that ECOSOC has settled the complaint to the satisfaction of the complainant.

2 Conclusion

It appears from the comments of ECOSOC and the complainant's oral observations that ECOSOC has taken steps to settle the matter and has thereby satisfied the complainant. The Ombudsman therefore closes the case.

FURTHER REMARK

The Ombudsman points out that it is for ECOSOC, in fulfilment of its obligations under the Staff Regulations, to consider whether to give any follow-up to the complainant's arguments concerning the propriety of the conduct of a member of the Selection Board.

The Secretary-General of ECOSOC will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The competition notice, in its introduction and in point 7, provided that the list of successful candidates would consist of maximum half of the number of candidates admitted to the competition in each field. For the field in which the complainant participated, there were 15 candidates.

(2) See footnote 1.