Background to the complaint

1. The complainant was interviewed for a contract agent[1] position by an EU Delegation[2]. The Delegation informed the complainant that he had been successful in the interview and the complainant confirmed his interest in the post. Two months later, on 15 February 2017, the Delegation informed the complainant that the European Commission´s Directorate General for International Cooperation and Development (DG DEVCO) had not approved his recruitment. On the same date, the complainant asked the Commission to inform him of the reasons why his recruitment had not been approved.

2. Having received no reply, the complainant turned to the Ombudsman in March 2018.

The inquiry

3. The Ombudsman opened an inquiry into how the Commission had handled the complainant´s recruitment file and its lack of reply to his subsequent request for information.

4. In the course of the inquiry, the Ombudsman received the reply from the Commission and the comments of the complainant in response to the Commission’s reply.

Arguments presented to the Ombudsman

5.  The Commission stated that it was responsible for ensuring that the best candidate for the post was hired. After careful consideration, the Commission concluded that the complainant was not the most suitable candidate for the post. Recruitment procedures for EU Delegations in developing countries are lengthy and Delegations are put under great pressure when positions are left empty for months. There was thus a need to find a committed candidate. The complainant had had three previous posts in EU Delegations. He had resigned from the first two posts before the end of his contract and he had turned down an offer to extend his third contract. In this context, the Commission did not consider it appropriate to offer the complainant a fourth contract in less than seven years. Employment contracts in EU Delegations may lead to indefinite contracts[3], the purpose of which is to attract and retain talent for specialized positions. As concerns contract agents in EU Delegations, the purpose of such employment contracts is also to attract and retain for longer periods talent for specialized positions.

6. The complainant argued that he terminated his first contract with an EU Delegation because he had to return to his former job, from which he was on unpaid leave. He had terminated his second contract due to a series of problems with the management of the Delegation in question. He turned down the offer to extend his third contract due to health issues that were specific to the country of employment. He had been in one post for around two years; in another one, for around three years.

7. The Commission stated that, at the interview, the complainant had been informed by the Delegation that there was no recruitment guarantee for candidates that the Delegation considered successful in the interview. Only the offer letter sent by the Commission at the end of the recruitment process would guarantee recruitment.

8. The complainant disagrees with the Commission’s view that he was not the most suitable candidate for the post. He has the required experience and his previous work in EU Delegations has been evaluated positively. If the Commission did not consider him to be committed, it should not have invited him for an interview.  The complainant is concerned that the Commission has “blacklisted” him and that it will not allow any EU Delegation to recruit him again.

The Ombudsman's assessment

9. During the course of the Ombudsman’s inquiry, the Commission replied to the complainant´s request for information (in May 2018). The Commission also apologized to the complainant for the time it had taken to reply to him. The Ombudsman therefore considers that this aspect of the complaint has been resolved.

10. Regarding the Commission’s decision not to recruit the complainant, the EU civil service has a wide margin of discretion when determining how to select its contract staff in the interest of the service^[4]. A decision not to recruit a particular candidate may be called into question by the Ombudsman only if the EU civil service has made a manifest error by exceeding the boundaries of its discretionary powers. It is not for the Ombudsman to substitute her judgment for that of the Commission in making a particular recruitment decision.

11. In this case, the Commission has explained that it did not consider the complainant to be the most suitable candidate as, in its view, he had not shown a sufficient level of ‘commitment’ in terms of staying in his previous posts. The complainant considers that he had valid reasons for the early termination of two previous contracts and for not having accepted an offer to extend a third one. The Ombudsman accepts that this may well be the case. However, given that the purpose of employment contracts in EU Delegations is to attract and retain talent for specialized positions for longer periods, the Commission’s justification in this case is adequate. The fact that the complainant had relevant experience and previous positive assessments does not change this finding.

12. There is, also, nothing to suggest that the Commission’s position could be considered as “blacklisting”. In this particular case, it identified a reason for not recruiting the candidate. The Ombudsman has no basis for questioning the general recruitment policy that the decision in this case reflects. On that basis, the Commission’s actions do not amount to maladministration.

13. However, as contract agent positions in the EU civil service are not necessarily seen as long-term jobs requiring a long term commitment, the Commission should communicate its policy in a clearer way to staff and candidates.

Conclusions:

Based on the inquiry, the Ombudsman closes this case with the following conclusions:

There was no maladministration by the Commission in its decision not to recruit the complainant.

The Commission has settled the aspect of the complaint that concerned the request for information.

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 12/12/2018

 

[1] Contract staff are recruited by the EU civil service to do manual or administrative support–service tasks or to provide additional capacity in specialized fields where insufficient permanent staff with the required skills are available. Contract staff are often employed for a fixed maximum period, depending on the type of job. See: https://epso.europa.eu/help/faq/2038_en?category=385

[2] The EU is represented through 139 Delegations and Offices around the world. The European External Action Service (EEAS) is responsible for the running of EU Delegations and Offices around the world. According to the Council Decision establishing the Organisation and functioning of the EEAS, “Staff in delegations shall comprise EEAS staff and, where appropriate for the implementation of the Union budget and Union policies other than those under the remit of the EEAS, Commission staff”. The Commission´s Directorate General for Cooperation and Development is therefore responsible for some of the staff working in EU delegations.

https://eeas.europa.eu/sites/eeas/files/eeas_decision_en.pdf

[3] Article 7 (1)  on the general provisions for implementing Article 79(2) of the Conditions of Employment of Other Servants of the European Union, governing the conditions of employment of contract staff employed by the Commission under the terms of Articles 3a and 3b thereof.

Available at: https://ec.europa.eu/transparency/regdoc/rep/3/2017/EN/C-2017-6760-F1-EN-MAIN-PART-1.PDF

[4] See Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, available here:

http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1433861011292&uri=CELEX:01962R0031-20140701

Article 82(6) of the Conditions of Employment of Other Servants establishes that “The authority referred to in the first paragraph of Article 6 [appointing authority] shall adopt general provisions on the procedures for engagement of contract staff in accordance with Article 110 of the Staff Regulations, as necessary”. See also the Judgement of the Civil Service Tribunal of 29 September 2009, Aparicio and Others v Commission of the European Communities, F-20/08 ECLI:EU:F:2009:132.