Strasbourg, 11 March 2004

Dear Mr I.,

On 24 February 2003, you made a complaint to the European Ombudsman concerning a selection of auxiliary staff for pre-enlargement organised by the European Personnel Selection Office (EPSO).

On 1 March 2003, you sent further documents to the European Ombudsman. On 27 March 2003, the European Ombudsman forwarded the complaint and the additional documents you sent on 1 March 2003 to the Director of EPSO.

EPSO sent its opinion on 30 June 2003. I forwarded it to you with an invitation to make observations, which you sent on 29 July 2003.

I apologise for the length of time it has taken to deal with your complaint.

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

THE COMPLAINT

The original complaint

According to the complainant, the relevant facts are as follows:

In 2002, the European Personnel Selection Office (EPSO) launched a call for expressions of interest for a number of non-permanent posts (primarily auxiliary posts) to be filled in 2003, in view of the enlargement of the European Union. Applicants needed to have the nationality of one of the ten Accession Countries or of one of the fifteen EU Member States. They also had to have a thorough knowledge of at least one of the languages of the Accession Countries and a good knowledge of English, French or German. Applicants had to send the registration form before 10 January 2003 to be considered eligible for inclusion in the database.

The complainant has French and Bulgarian nationality. He sent his application before the deadline. The complainant was subsequently informed that his application had been rejected.

On 22 February 2003, he wrote an e-mail to the Director of EPSO and asked for a review of the decision to reject his application. He stated that his application fulfilled the conditions set out in the call for expressions of interest. On 24 February 2003, the Director of EPSO replied that the complainant's application had been rejected because applicants were required to have an excellent knowledge of at least one of the nine languages corresponding to the ten Accession Countries. Due to the fact the complainant had not ticked "excellent" but "very good" in relation to his knowledge of one of these languages, the "validation jury"(1) had not considered his application eligible.

On 24 February 2003, the complainant lodged a complaint with the European Ombudsman. He alleged that the pre-selection procedure was unfair because it was based on a subjective appraisal by the candidate himself of his own language skills. In his view, there was the risk that good candidates with a realistic appraisal of their skills were once and for all pushed aside while other ones passed the pre-selection tests on the basis of their own unrealistic appraisal. In this context, the complainant failed to understand the difference between "excellent" and "very good" which he considered to be a question of personal appreciation.

He claimed that his application should have been taken into consideration and his name put on the list made available to the Directorates General of the Commission.

The letter of the complainant dated 1 March 2003

On 1 March 2003, the complainant sent a further letter to the European Ombudsman. He alleged that the selection procedure was not transparent.

THE INQUIRY

EPSO's opinion

EPSO's opinion on the complaint was in summary as follows:

Applicants were asked to have a thorough knowledge of at least one of the languages of the ten accession countries and a good knowledge of English, French or German. This reflected the spirit of Article 28 (f) of the Staff Regulations according to which nobody can be appointed as an official unless he “produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties". Applicants were requested to fill in the compulsory registration form, to send it before 10 January 2003 and to enclose their CV.

As indicated in the "Guide for candidates" published on the website, it is up to the candidates to choose the languages they wish to indicate and to specify the level of their knowledge.

The selection procedure was divided into two stages; the pre-selection stage and the interviews. A "validation jury", composed of representatives of all the Community institutions taking part in the procedure, defined the filtering criteria in order to determine the candidates admitted to the database of candidates having fulfilled the eligibility criteria. EPSO’s services had helped in checking more than 25 000 applications. This operation ended on 13 February 2003, and the database was made available to the institutions so that the latter could examine the applications in the light of their own needs. A little more than 3 000 applications had not been included in the database.

In the present case, the complainant's application was examined by the "validation jury" according to the filtering criteria mentioned above. Pursuant to one of these filtering criteria, candidates had to possess a thorough knowledge of at least one of the languages of the ten accession countries. The "validation jury" had interpreted the expression “thorough knowledge” as equivalent to that of main or mother tongue or “excellent” knowledge.

The complainant had indicated in his application that his mother tongue was French and that his knowledge of Slovenian was "good”. He further mentioned that his knowledge of English was "good" in speaking and writing and "very good" in reading.

Since the complainant himself had evaluated his knowledge of one of the languages of the accession countries (in this case, Slovenian) as being “good”, the "validation jury" had limited itself to applying the filtering criteria that had already been established in order to check the admissibility of applications and had thus been unable to include the complainant’s application in the relevant data base.

Information published on the EPSO website underlined the importance of a thorough knowledge of one of the languages of the accession countries. The eligibility criteria for this procedure that had been published on EPSO’s website reflected the real needs that the European institutions had identified in relation to the tasks linked to the preparation of the forthcoming enlargement.

The complainant's observations

The European Ombudsman forwarded the opinion of EPSO to the complainant with an invitation to make observations. In his reply of 29 July 2003, the complainant maintained his complaint and made the following further comments:

At the beginning of the selection procedure, EPSO indicated two eligibility criteria to be fulfilled in order to be admitted to the database, namely, the nationality of "one of the ten accession countries" or of "one of the actual Member States" and a thorough knowledge of at least one of the languages of the ten accession countries. On 26 February 2003, after the deadline for the filing of the applications, EPSO for the first time defined and published "filtering criteria". The latter added such important details and exceptions that they modified the initial eligibility criteria.

EPSO at first required the candidates to have a "thorough" knowledge ("connaissance approfondie") of at least one of the languages of the ten accession countries. On the electronic registration form, EPSO replaced this expression with "very good" and "excellent". Finally, the "validation jury" decided to make a distinction between a "very good" and "excellent" knowledge of one of the languages of the ten accession countries.

The complainant pointed out that, contrary to what EPSO stated in its opinion, he had indicated his knowledge of Slovenian as being "very good" and not "good", as mentioned by EPSO in its opinion, an option which did not exist in the electronic registration form.

THE DECISION

1 The alleged unfairness of the pre-selection procedure due to the subjective appraisal by the candidate himself of his own language skills

1.1 The complainant alleged that the pre-selection procedure was unfair because it was based on a subjective appraisal by the candidate himself of his own language skills. In his view, there was the risk that good candidates with a realistic appraisal of their skills were once and for all pushed aside while other ones passed the pre-selection tests on the basis of their own unrealistic appraisal.

1.2 EPSO stated that, as indicated in the "Guide for candidates" published on the website, it was up to the candidates to choose the languages they wished to indicate and to specify the level of their knowledge.

1.3 The Ombudsman notes that the call for expression of interests did not mention any prior checking of the knowledge of the languages indicated by the applicants in their registration form. Candidates were requested to select their mother tongue/principal language and then to indicate the level of knowledge in their other language(s). The selection procedure therefore did indeed imply an appraisal by the candidates themselves of their own language skills. Nevertheless, it should be noted that this way of proceeding was or must have been known to all candidates. It should further be noted that interviews were foreseen to take place with candidates whose names had been entered in the database. Inexact information given by candidates when filling in the registration form could thus have been discovered in any event at their interviews.

1.4 From the above, the European Ombudsman concludes that there appears to have been no maladministration by EPSO in this case.

2 The alleged lack of transparency in the selection procedure

2.1 The complainant alleged that the selection procedure was not transparent. He pointed out that he did not understand the difference between "excellent" and "very good" which he considered to be a question of personal appreciation.

2.2 EPSO stated that applicants were asked to have a thorough knowledge of at least one of the languages of the ten accession countries and a good knowledge of English, French or German. This reflected the spirit of Article 28 (f) of the Staff Regulations according to which nobody can be appointed as an official unless he “produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties". As indicated in the "Guide for candidates" published in the website, it is up to the candidates to choose the languages they wish to indicate and to specify the level of their knowledge.

2.3 The European Ombudsman notes that the general conditions as set out in the call for expression of interests required candidates to have a thorough knowledge of at least one of the languages of the ten accession countries and a good knowledge of English, French or German. Candidates were asked firstly to indicate their main/mother tongue and then the level of knowledge of their second language. On 26 February 2003, a "validation jury" established "sift criteria"(2) in order to determine which applicants were eligible for inclusion in the database. Pursuant to these criteria, the level of knowledge of an accession country language had to be "excellent" or "main language/mother tongue" level".

2.4 The complainant had indicated in his application that his mother tongue was French and that his knowledge of Slovenian was “very good”. In its opinion on the complaint, EPSO stated that the complainant himself had evaluated his knowledge of Slovenian as being “good”. Given that the "validation jury" had interpreted the expression “thorough knowledge” as requiring a knowledge equivalent to that of main or mother tongue or an “excellent” knowledge, the Ombudsman considers that this discrepancy has not any impact on the present case. The decision of the "validation jury" not to include the complainant’s application in the relevant data base would appear to have been taken in accordance with the filtering criteria established by the latter, regardless of whether the complainant's knowledge of Slovenian was "good" or “very good”.

2.5 However, the question remains as to whether by interpreting the said criterion in this way, EPSO respected the need for transparency in the selection procedure. The European Ombudsman has already had to deal with this issue in his inquiry into complaint 411/2003/GG(3).

2.6 In this decision, the European Ombudsman stated that "The fact remains, however, that the call for expressions of interest only required candidates to possess a “thorough” knowledge of the relevant language (…) It is true that Article 28 (f) of the Staff Regulations requires a “thorough” knowledge of one of the languages of the European Communities and that this criterion appears to have been interpreted, within the context of competitions, as requiring an excellent knowledge or mother-tongue level knowledge of the language concerned. However, nothing in the call for expressions of interest seems to have indicated that the relevant criterion had to be interpreted in the same way as the said requirement in Article 28 (f) of the Staff Regulations. It should further be noted that whilst Article 28 (f) of the Staff Regulations requires a “thorough” knowledge of one language and a “satisfactory” knowledge of another, the call for expressions of interest requires a “thorough” knowledge of one language and a “sound” knowledge of another. In view of this difference in wording candidates could hardly be expected to know that EPSO would interpret the term “thorough” the way it did. The Ombudsman therefore considers that EPSO failed sufficiently to clarify the linguistic requirements it expected candidates to meet. This is an instance of maladministration. A critical remark will be made in this context."

2.7 The Ombudsman takes the view that the considerations set out in this decision also apply to the facts of the present complaint.

2.8 In view of the above, the Ombudsman considers that EPSO failed sufficiently to clarify the linguistic requirements it expected candidates to meet. This is an instance of maladministration. A critical remark will be made in this context.

3 The complainant's claims

3.1 The complainant claimed that his application should be taken into consideration and his name put on the list made available to the Directorates General of the Commission.

3.2 In view of his conclusions set out above (paragraph 2.7), the Ombudsman considers that there is no need further to pursue his inquiry into this aspect of the complaint.

4 Conclusion

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

The call for expressions of interest only required candidates to possess a “thorough” knowledge of the relevant language. In the light of the explanations provided by EPSO, it appears reasonable to require that candidates should have an excellent or mother-tongue level knowledge of this language. However, the Ombudsman considers that EPSO failed sufficiently to clarify the linguistic requirements it expected candidates to meet. This is an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The European Ombudsman would like to remind EPSO, that in its reply to the Ombudsman’s proposal for a friendly solution in complaint 411/2003/GG above mentioned, "EPSO pointed out that if the Ombudsman should consider that an explanation should be included in future calls for expressions of interest, EPSO would consider taking the necessary steps".

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) This expression was used by EPSO in the call for expressions of interest.

(2) This expression was used by EPSO in the call for expressions of interest.

(3) See decision 411/2003/GG against EPSO of 19 November 2003 - http://www.ombudsman.europa.eu/decision/en/030411.htm