The complaint to the Commission

1. The complainant was 61 years old when applying to this temporary post. When the Commission refused the application on grounds of the complainant’s age, the complainant argued that EU staff may work until they are 70 years old. The complainant has the experience and the knowledge required for the post. The refusal based exclusively on grounds of age was, therefore, discriminatory.

The Commission’s response to the complainant

2. The successful candidate was expected to complete a full five-year mandate as Director before reaching the retirement age. The complainant would have reached retirement age before completing a full mandate. It is true that, in some circumstances, EU staff may work beyond retirement age. This, however, should not be interpreted as an individual entitlement. The appointing authority may, if considered justified in the interest of the service, decide that a member of staff carries on working after the retirement age. It cannot be presumed at the application stage, however, that the appointing authority will adopt such a decision in the future. EU rules on equal treatment in employment recognise the need for a reasonable period of employment before retirement as a justification for the fixing of a maximum age for recruitment.

3. The complainant was not satisfied with the Commission’s response and turned to the Ombudsman arguing that the Commission discriminated against the complainant on grounds of age.

The European Ombudsman's findings

4. According to the vacancy notice, candidates were expected to be “able to complete, at the deadline for application, the full mandate of 5 years before reaching the retirement age...”

5. The retirement age of EU temporary staff is 66. Exceptionally, they may be authorised to carry on working after the retirement age and until they are 70 years old. Any such possibility, however, depends of a number of circumstances, namely, there existing interest of the service, as defined by the appointing authority^[1].

6. The Commission is correct to say that the interest of the service cannot be presumed to exist in the future^[2].

7. When the appointing authority were to decide whether it is or is not in the interest of the service that the complainant continue on the post, that is, at the time when the complainant were to reach the retirement age, the complainant would have not yet completed a full five-year mandate as Director.

8. Finally, the Commission has provided a justification for the requirement related to age set out in the vacancy notice and the complainant did not contest that justification.

9. It follows from the above that there was no maladministration in this case.^[3]

 

Marta Hirsch-Ziembińska

Head of Inquiries and ICT - Unit 1

Strasbourg, 28/11/2018

 

 

[1] See Article 52 of the Staff Regulations and Article 47 of the Conditions of Employment of Other Servants.

[2] See Case T-801/16 RENV, Fedtke v EESC, ECLI:EU:T:2018:312, paragraphs 151, 189 and 190.

[3] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions