Strasbourg, 28 January 2005

Dear Mr T.,

On 20 July 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning competition EPSO/A/6/03.

On 2 September 2004, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 8 November 2004, and I forwarded it to you on 12 November 2004 with an invitation to make observations, which you sent on 31 December 2004.

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

THE COMPLAINT

The complainant, a Latvian national, took part in competition EPSO/A/6/03 to constitute a reserve pool of assistant administrators (LA 8) for Latvian nationals. He opted for field 2 ("Law").

The notice of competition (point A.II.1) provided that candidates would only be considered if their degree "is one that gives access to doctoral studies. The selection board will allow for differences between national education systems. See the examples of the minimum qualifications required in the tables annexed to the guide for candidates (see website)." As regards field 2, the notice of competition stipulated that candidates needed to have completed either "a full course in law at university level and obtained a degree" or "a full course at university level and obtained a degree, followed by a postgraduate certificate of studies in law".

The complainant has a bachelors degree ("Bakalaureusekraad") in law that had been awarded to him by an Estonian university after four years of studies. The degree records a number of 164 credit points.

The complainant sat and passed the pre-selection tests. On 5 February 2004, he was thus invited to fill in the official application form and submit the supporting documents. The complainant proceeded accordingly.

On 29 March 2004, EPSO informed him that he could not be admitted to the competition since he did not have the relevant university degree and/or postgraduate certificate of studies within the field selected by him.

On 2 and 14 April 2004, the complainant asked EPSO to reconsider this decision. In his letter of 14 April 2004, the complainant submitted that point A.II.1 of the notice of competition EPSO/A/6/03 referred to the "Guide for applicants" published by EPSO in the Official Journal (OJ 2003 no. C 132 A of 6 June 2003, p. 9).This guide provides information for candidates wishing to take part in A, LA, B, C or D competitions. With regard to educational qualifications, the guide notes that the conditions are adapted to the educational systems in the Member States and in the accession countries and refers to the "sample qualifications in the Annexes". The guide further provides that candidates for A and LA competitions "must have completed a full university course and obtained a degree or diploma giving access to doctoral studies". Annex 1 B of the guide ("Guide to diplomas giving access to category A competitions") contains the following indications:

"Eesti [Estonia] Bakalaureusekraad (160 ainepunkti/4-aastase) või ekvivalente (*)

(...)

(*) Assessed on a case-by-case basis."

The complainant submitted that this meant that an Estonian "Bakalaureusekraad" with 160 credit points and awarded after four years of studies gave access to the relevant competition.

In its reply of 28 April 2004, EPSO confirmed its decision by pointing out that in its view the complainant had not shown that his degree was one that gave access to doctoral studies, as required by the notice of competition.

In his complaint to the Ombudsman, the complainant made in substance the following allegations:

(1) EPSO's decision to reject his application on the grounds that he did not have the requisite degree was incorrect.

(2) EPSO had failed to provide consistent information on the educational requirements applicable to competition EPSO/A/6/03, given that the guide for applicants published in the OJ 2003 no. C 132 A, p. 9 provided that an Estonian "Bakalaureusekraad" (160 credit points) gave access to category A competitions.

(3) EPSO had violated the principle of consistency and the legitimate expectations of the complainant by rejecting his application nine months after the start of the competition and after he had successfully passed the pre-selection tests.

The complainant claimed that EPSO should admit him to the written tests.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO made the following comments:

The notice of competition had informed candidates that the tables annexed to the guide for applicants (published on EPSO's website) contained examples of the minimum diplomas required. It was important to note that the guide set out the minimum conditions and that this was purely for information. In its proceedings, the selection board was bound only by the text of the competition notice.

The notice for competition EPSO/A/6/03 had stated that only diplomas giving access to doctoral studies would be considered. The Estonian Bakalaureuse offered access to doctoral studies only if it was supplemented by a Magistri, a degree awarded after a further two years of study. Under the circumstances, the selection board had had no choice but to refuse the complainant's admission to the competition, given that the complainant only had a Bakalaureuse.

The competition notice had provided applicants with an indicative timetable, informing them of the length of the procedure (about nine months, depending on the number of candidates). It should be noted (1) that the pre-selection tests had taken place in mid-December 2003, (2) that candidates had been informed of the results of these tests in February 2004, (3) that the candidates who had passed the pre-selection tests and who had received the best marks in them had been invited to submit their application form and supporting evidence before the end of February 2004 and (4) that candidates had received the selection board's decision on their admission to the competition at the end of March 2004. This was a perfectly reasonable length of time.

The case-law of the European courts had confirmed that the selection board was entitled to check whether candidates satisfied the conditions for admission after they had sat the pre-selection and the written tests. The appointing authority had to be able to remove at any stage in the selection procedure candidates not satisfying the conditions of admission (see judgement in Case T-332/01 Pujals Gomis v Commission [2002] ECR-SC I-A-233, II-1155).

The complainant's observations

In his observations, the complainant maintained his complaint. The complainant pointed out that whilst the first sentence of the first paragraph of point A.II.1 of the notice of competition required that candidates needed to have a degree giving access to doctoral studies, the information in relation to field 2 of that same point explicitly stipulated that candidates needed to have completed either "a full course in law at university level and obtained a degree" or "a full course at university level and obtained a degree, followed by a postgraduate certificate of studies in law". It thus appeared that "a full course in law at university level" (which corresponded to the bachelor's degree) and "a full course at university level (...) followed by a postgraduate certificate in law" (which referred to the Master's degree) were equally sufficient. Point A.II.1 of the notice of competition thus contained an in-built inconsistency, and he had been led to believe that for the purposes of the competition in question a Master's degree was required only in cases where the prior bachelor's degree had been obtained in a field other than law.

THE DECISION

1 Allegedly incorrect failure to admit the complainant to the competition

1.1 The complainant, a Latvian national, took part in competition EPSO/A/6/03 organised by the European Personnel Selection Office ("EPSO") to constitute a reserve pool of assistant administrators (LA 8) for Latvian nationals. He opted for field 2 ("Law"). The notice of competition (point A.II.1) provided that candidates would only be considered if their degree "is one that gives access to doctoral studies. The selection board will allow for differences between national education systems. See the examples of the minimum qualifications required in the tables annexed to the guideline for candidates (see website)." The complainant has a bachelors degree ("Bakalaureusekraad") in law that was awarded to him by an Estonian university after four years of studies. The degree records a number of 164 credit points. In his complaint to the Ombudsman, the complainant relied on the "Guide for applicants" published by EPSO in the Official Journal (OJ 2003 no. C 132 A of 6 June 2003, p. 9). This guide provides information for candidates wishing to take part in A, LA, B, C or D competitions and refers to the "sample qualifications in the Annexes". The guide further provides that candidates for A and LA competitions "must have completed a full university course and obtained a degree or diploma giving access to doctoral studies". Annex 1 B of the guide (which bears the heading "Guide to diplomas giving access to category A competitions") mentions for Estonia the "Bakalaureusekraad (160 ainepunkti/4-aastase) või ekvivalente" (with as footnote stating "Assessed on a case-by-case basis"). The complainant submitted that this meant that an Estonian "Bakalaureusekraad" with 160 credit points and awarded after four years of studies gave access to the relevant competition. He therefore alleged that EPSO's refusal to admit him to competition EPSO/A/6/03 was incorrect.

1.2 In its opinion, EPSO pointed out that the notice for competition EPSO/A/6/03 had stated that only diplomas giving access to doctoral studies would be considered. According to EPSO, the Estonian Bakalaureuse offered access to doctoral studies only if it was supplemented by a Magistri, a degree awarded after a further two years of study. EPSO argued that in these circumstances, the selection board had had no choice but to refuse the complainant's admission to the competition, given that the complainant only had a Bakalaureuse.

1.3 The Ombudsman notes that the complainant does not appear to deny that his degree does not in itself give access to doctoral studies. In these circumstances, the Ombudsman is unable to find maladministration in so far as the complainant's first allegation is concerned.

2 Alleged failure to provide consistent information

2.1 The complainant alleged that EPSO had failed to provide consistent information on the educational requirements applicable to competition EPSO/A/6/03, given (1) that the notice of competition stipulated that candidates needed to have completed either "a full course in law at university level and obtained a degree" or "a full course at university level and obtained a degree, followed by a postgraduate certificate of studies in law" and (2) that the guide for applicants published in the OJ 2003 no. C 132 A, p. 9 had provided that an Estonian "Bakalaureusekraad" (160 credit points) gave access to category A competitions.

2.2 In its opinion, EPSO submitted that the notice of competition informed candidates that the tables annexed to the guide for applicants (published on EPSO's website) contained examples of the minimum diplomas required. EPSO also pointed out that the guide was purely for information and that the selection board was bound only by the text of the competition notice which clearly required that candidates needed to have a degree giving access to doctoral studies.

2.3 In so far as the notice of competition is concerned, the Ombudsman considers that it was clear that candidates needed to have a degree giving access to doctoral studies. The fact that the notice of competition stipulated that candidates needed to have completed either "a full course in law at university level and obtained a degree" or "a full course at university level and obtained a degree, followed by a postgraduate certificate of studies in law" cannot be understood as meaning that any law degree obtained at a university would be sufficient. The Ombudsman takes the view that such an interpretation would make the requirement that the degree must give access to doctoral studies redundant. He therefore considers that EPSO's position regarding this aspect of the case is reasonable.

2.4 The Ombudsman notes that the complainant referred to a guide published in the Official Journal, whereas EPSO referred to a guide published on its website. Given that EPSO has neither produced a copy of the guide published on its website nor objected to the citations of the guide published in the Official Journal that the complainant included in his complaint, the Ombudsman considers that both parties are in fact referring to one and the same text. It therefore appears appropriate to use the version published in the Official Journal, a copy of which the Ombudsman has been able to download from the internet.

2.5 It is good administrative practice to provide candidates wishing to take part in a competition with clear and correct information regarding the conditions of admissibility. The Ombudsman notes that the guide published in the Official Journal does indeed make it clear (in point A.I.1) that it provides information on the "minimum educational requirements" that a candidate needs to fulfil in order to be able to take part in a competition. However, the Ombudsman also notes that the text of the guide continues by stating that candidates for A (and LA) competitions "must have completed a full university course and obtained a degree or diploma giving access to doctoral studies". The same passage refers to the "sample qualifications in the Annexes". As already mentioned above, Annex 1 B of the guide (which bears the heading "Guide to diplomas giving access to category A competitions") mentions for Estonia the "Bakalaureusekraad (160 ainepunkti/4-aastase) või ekvivalente" (with as footnote stating "Assessed on a case-by-case basis"). In the Ombudsman's view, the wording of this guide gives the impression that the diplomas mentioned in Annex 1 B are degrees or diplomas "giving access to doctoral studies"(1). This impression is confirmed by point A.II.1 of the notice of competition EPSO/A/6/03 which provides that candidates would only be considered if their degree "is one that gives access to doctoral studies. The selection board will allow for differences between national education systems. See the examples of the minimum qualifications required in the tables annexed to the guide for candidates (see website)." However, and as mentioned above, EPSO considers that the "Bakalaureusekraad" does not in itself give access to doctoral studies in Estonia. The information provided by EPSO was thus likely to mislead candidates. It is true that the guide makes it clear that it is for information only. However, this does not relieve EPSO of its duty to ensure that the information contained in this guide is as clear and correct as possible. EPSO's failure to do so constitutes an instance of maladministration. A critical remark will be made in this respect.

3 Alleged violation of the principle of consistency and of the complainant's legitimate expectations

3.1 The complainant alleged that EPSO had violated the principle of consistency and his legitimate expectations by rejecting his application nine months after the start of the competition and after he had successfully passed the pre-selection tests.

3.2 EPSO pointed out that the competition notice had provided applicants with an indicative timetable, informing them of the length of the procedure (about nine months, depending on the number of candidates). EPSO also explained (1) that the pre-selection tests had taken place in mid-December 2003, (2) that candidates had been informed of the results of these tests in February 2004, (3) that the candidates who had passed the pre-selection tests and who had received the best marks in them had been invited to submit their application form and supporting evidence before the end of February 2004 and (4) that candidates had received the selection board's decision on their admission to the competition at the end of March 2004. According to EPSO, this was a perfectly reasonable length of time. EPSO also submitted that the case-law of the European courts had confirmed that the selection board was entitled to check whether candidates satisfied the conditions for admission after they had sat the pre-selection and the written tests.

3.3 The Ombudsman notes that candidates were informed, in the notice of competition, about the way in which the competition would be run, and in particular as regards the fact that the admissibility of applications would only be examined after the pre-selection tests and the written tests. He further considers that no undue delay appears to have occurred in the procedure. In these circumstances, the Ombudsman takes the view that there appears to be no maladministration in so far as the complainant's third allegation is concerned.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

It is good administrative practice to provide candidates wishing to take part in a competition with clear and correct information regarding the conditions of admissibility. The Ombudsman considers that the wording of the guide published in the Official Journal gives the impression that the diplomas mentioned in its Annex 1 B are degrees or diplomas "giving access to doctoral studies", as required by the notice of competition EPSO/A/6/03. This impression is confirmed by point A.II.1 of this notice of competition which provides that candidates would only be considered if their degree "is one that gives access to doctoral studies. The selection board will allow for differences between national education systems. See the examples of the minimum qualifications required in the tables annexed to the guide for candidates (see website)." However, EPSO considers that the "Bakalaureusekraad" (which is mentioned in Annex 1 B of the guide) does not in itself give access to doctoral studies in Estonia. The information provided by EPSO was thus likely to mislead candidates. It is true that the guide makes it clear that it is for information only. However, this does not relieve EPSO of its duty to ensure that the information contained in this guide is as clear and correct as possible. EPSO's failure to do so constitutes an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past and that the instance of maladministration found by the Ombudsman does not call into question the correctness of EPSO's decision to exclude the complainant from competition EPSO/A/6/03, it is not appropriate to pursue a friendly settlement of the matter. 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) The Ombudsman considers that the qualification contained in the footnote ("To be assessed on a case-by-case basis") only applies to degrees or diplomas that are "equivalent" to a "Bakalaureusekraad", not to the "Bakalaureusekraad" itself.