Strasbourg, 8 April 2008

Dear Mr L.,

On 20 September 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your participation in EPSO's Call for expression of interest "CAST 25" (Contract Agents EU 25 carrying out various tasks within the European Institutions). On 2 October 2006, you sent supporting documents.

On 18 October 2006, I forwarded your complaint and the supporting documents to the Director of EPSO. EPSO sent its opinion on 8 February 2007. I forwarded it to you with an invitation to make observations, which you sent on 24 February 2007.

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

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

THE COMPLAINT

The Call for expression of interest CAST 25

The present complaint concerns the Call for expression of interest "CAST 25" (Contract Agents EU 25 carrying out various tasks within the European Institutions, hereafter "the Call") organised by the European Personnel Selection Office ("EPSO"). The Call was published on EPSO's website on 20 June 2005(1), together with (i) a document entitled "Areas of employment", setting out four Function Groups (I to IV) on the basis of the level of education, and (ii) an Application Guide for candidates. The Call stated that its purpose was to recruit staff with the following general competences: "For Function Group IV: administrative, communication and advisory tasks, researchers, engineers, linguists, architects". With regard to the function "Engineer" within that Function Group, the document "Areas of employment" contained the following five fields of interest: "Civil, Electrical, Mechanical, Plant, Other". The Application Guide stated that, when applying through the electronic registration system, candidates had to select the Function Group (I to IV) for which they wanted to apply and could choose up to three types of positions in order of preference within the Function Group selected.

The complaint

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

The complainant, who is a civil engineer but has professional experience in Information Technology (IT), registered, within Function Group IV, for the field "Engineer, Other". The complainant subsequently participated and succeeded in the first part of the pre-selection tests, which consisted of aptitude tests and a test to assess the knowledge of the European integration process and of the Institutions.

On 31 August 2006 and after the tests had taken place, EPSO informed the candidates that the field "Engineer, Other" would be cancelled, and that candidates had to choose from the other existing fields. The complainant reacted immediately (by e-mail) as he considered it inadmissible that the choice had a posteriori been reduced. The complainant was contacted by EPSO by telephone and again invited to choose from among the four specific "Engineer" fields.

In reaction to this, the complainant contacted EPSO again and proposed to be allowed either (i) to participate in the Call for expression of interest EPSO/TA/IT/06 (temporary agents), which specifically concerned IT but for which the application deadline had already expired one month earlier, or (ii) to have "IT" added to the fields of the CAST 25 Call. Neither of these options was accepted by EPSO.

On 20 September 2006, the complainant made the present complaint to the European Ombudsman, making the following allegation and claim:

(1) EPSO had unfairly and retroactively cancelled the field "Engineer, Other" from Function Group IV of the Call for expression of interest CAST 25.

(2) EPSO should allow him either (1) to participate in the Call for expression of interest EPSO/TA/IT/06 or (2) to have "IT" added to the "Engineer" fields in Function Group IV of the Call for expression of interest CAST 25.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO made, in summary, the following comments:

As regards the facts

The Call contained information on the different conditions, the procedure to be followed for registration and the way the tests were to be conducted. The complainant introduced his application in accordance with the procedure. He chose Function Group IV - field of interest: 1st choice "(Ing.)Other".

The complainant successfully passed the verbal and numerical reasoning tests and was informed that he was invited for the second phase of the selection, namely, the ability tests in the field of his first choice. He was also informed of the fact that EPSO was finishing its preparation of these tests for all the Functions Groups, and that information would be available at the beginning of April 2006.

On 11 April 2006, a communication was published on EPSO's website under the heading "Latest news", informing the candidates that the second phase of the tests was in preparation. A document which was annexed to this communication indicated that the planning of these tests was adapted to the immediate needs of the European institutions and that the tests would be held between May and December 2006. Information concerning the indicative planning of these tests was also provided, according to the different Function Groups. The tests for Function Group IV were foreseen to take place between October and December 2006.

On 1 August 2006, the complainant was informed, through his EPSO profile, that EPSO was preparing the second phase of the tests for Function Group IV in the first field of interest selected. EPSO noted that, in his application, the complainant had selected as his first field of interest "(Ing.) Other", but that, in order to be able to assess his specific competences, he should indicate the field of interest which he preferred among the four possibilities for Engineers, namely, civil engineer, electrical engineer, mechanical engineer, and plant engineer. The complainant was invited to give his reply by 10 September 2006.

On 2 August 2006, the complainant wrote to EPSO expressing his surprise at the restricted choice which was proposed. He added that, given the nature of his experience in the IT field, he would like to continue in the field of IT as an engineer, and be able to choose a field in this domain, such as "software System Design, Architecture, Systems Integration, Solutions Architect (...)". On 3 August 2006, EPSO replied that, considering his initial choice made when registering, he had to make his choice among the options in the field "Engineer".

On 10 August 2006, EPSO added information to the EPSO profiles of all candidates according to which the list for choosing the preferred field of interest had been updated. On the same day, the complainant asked for clarifications concerning the definition of certain terms used in the last message sent by EPSO as well as the possibilities proposed in the IT field in general. On 1 September 2006, EPSO replied to the complainant by providing the requested clarifications. EPSO also explained that the term "IT" concerned Information Technologies in general and that, if this term had not been included in any of the fields foreseen in the Call, this was because the institutions had not expressed, at the time, a need for candidates having such a profile. EPSO further informed the complainant that, as regards IT posts, another Call for expression of interest had been launched by EPSO (EPSO/TA/IT/06), but that this Call had been closed on 24 July 2006. EPSO indicated that, if the complainant had registered for this selection procedure, he would have been contacted in case the institutions had been interested in his professional profile. As regards the Call "CAST 25", EPSO suggested to the complainant, in case he wished to pursue the selection procedure, to choose, from among the four fields proposed, the one which corresponded most to his profile.

On 3 September 2006, the complainant informed EPSO of his remarks concerning the term "Ing.Other" published at the moment of the launch of the Call. The complainant also underlined that he fulfilled all the selection conditions of the Call EPSO/TA/IT/06 and asked for his application to be transferred from the Call "CAST 25" to the Call EPSO/TA/IT/06.

On 6 September 2006, the complainant sent another e-mail to EPSO confirming his request, namely, to have the "IT" field added to the fields of interest of Function Group IV in the Call, or to have his application transferred to the Call EPSO/TA/IT/06.

EPSO replied to the complainant on 7 September 2006, informing him that it was not possible to transfer his application from one selection procedure to the other and inviting him to make a choice among the four fields indicated in EPSO's last letter. On the same day, the complainant replied to EPSO that it was impossible for him to make a choice among the fields of interest because the list had been reduced during the selection procedure. However, in order not to abandon, at that stage, the selection procedure, the complainant chose "Mechanical Engineer".

On 7 September 2006, information was published on the complainant's EPSO profile indicating that the ability tests for the field chosen, namely, Mechanical Engineer, were foreseen for 17 November 2006.

By e-mail of 18 September 2006, EPSO confirmed to the complainant that the tests would indeed take place on 17 November 2006. The complainant was informed that he would be invited to the examination centre in Brussels (where he had already passed the previous tests), unless he would opt for another venue.

As the complainant did not react to this e-mail, EPSO sent him an e-mail on 20 September 2006 informing him that, in the absence of a reply by 25 September 2006 at the latest, the examination centre for the ability tests would be the one chosen for the first tests. The complainant did not confirm his choice of examination centre and did not show up at the Brussels examination centre on the day of the tests.

As regards the complainant's allegation

As regards the field "Engineer, Other" initially foreseen in Function Group IV of the Call, EPSO stated that, in order to fulfil the demand expressed by the EU institutions, and more particularly the European Commission, it had organised the Call in order to constitute a database of candidates to be recruited as contract agents, and the validity of the database was to be three years. This Call took into account the different needs expressed by the Institutions for the four Function Groups.

EPSO pointed out that, when establishing their needs, the Institutions wished to cover as many fields as possible within each Function Group. Thus, the field "Engineer, Other" had been foreseen, in order to satisfy specific needs that could have arisen at a later stage. However, during the procedure, the Institutions had informed EPSO that their needs in the field "Engineer" concerned only the four specific fields. This was why, in order to allow candidates who had chosen "Engineer, Other" further to participate in the selection, EPSO had offered them the possibility to choose from among the four specific fields which had already been fixed at the moment of the launch of the Call.

As regards the complainant's claims

As regards the complainant's first claim, EPSO stated that the Call EPSO/TA/IT/06 had been launched by EPSO on 14 June 2006 in order to constitute a database of candidates to be recruited as temporary agents carrying out various tasks in the IT field in the European Institutions. The posts for which this selection procedure had been organised required the execution of tasks in six specific IT fields. The deadline for applications was 24 July 2006 and no applications could be received after this date.

The complainant had not applied for this selection procedure. Therefore, his request of 3 September 2006 to have his application transferred to this selection procedure could not be accepted. EPSO pointed out that it was the responsibility of the candidate himself to take the necessary steps in order to introduce his application within the deadlines, and that these were two distinct selection procedures.

As regards the complainant's second claim, EPSO recalled that the IT field had not been foreseen at the moment of the publication of the Call. EPSO underlined that it was the services' needs, and not the ones of the candidates, which could have led to offering to the candidates fields other than the four fields which had been foreseen. However, EPSO did not receive from the services such a request. EPSO also referred to the established case-law of the Community Courts according to which it does not follow from the Staff Regulations that, once a recruitment procedure has been initiated, the Appointing Authority has to follow it up, as the annulment of a post does not affect the rights of candidates.

The complainant's observations

In his observations, the complainant made the following comments:

EPSO tried to put the responsibility for what happened on the Commission which had allegedly, in the course of the procedure ("en cours de route"), reduced the scope of the Call.

Considering that about one fifth of the civil engineers who complete their studies qualify as "engineer-informatics", the complainant could reasonably have assumed that IT was included in the filed "Engineer, Other". Only later, after the examinations had taken place, had this field been cancelled and the scope of the selection procedure been reduced to the other four engineer fields. Candidates such as the complainant were moreover obliged to choose from among those four fields, and were not offered a possibility to do so.

The complainant considered that EPSO's argument that there were other competitions concerning IT was not relevant.

The complainant pointed out that the fact that he did not participate in the last test of the Call was only normal, as it did not make much sense to continue with a procedure that would lead to a job one did not want.

European citizens should not become the victims of two institutions, namely, EPSO and the Commission, that were blaming each other for wrongdoing.

The complainant also underlined that the Commission needed alot of IT resources, given that many IT competitions are organised. EPSO had chosen an "easy way out" instead of trying to find an acceptable solution for all parties. The complainant felt that, as a citizen, one was in a weak position in comparison to an EU institution. In the present case, the weakest party had become the victim.

THE DECISION

1 The scope of the inquiry

1.1 The present complaint concerns the handling, by the European Personnel Selection Office ("EPSO"), of an objection, raised by the complainant, to the latter's decision to alter a specific call for expression of interest, in which he was participating. The Ombudsman notes, however, that this complaint also highlights a more general issue of recruitment policy, namely, the assessment by the Community institutions and bodies of their staff needs before launching competitions or calls for expression of interest.

1.2 The Ombudsman notes that the complainant has not made any allegation or claim concerning this more general issue. The present decision will therefore only deal with the allegation and the claim that were raised by the complainant. The Ombudsman will however make a further remark with regard to the above-mentioned general issue.

2 The allegedly unfair and retroactive cancellation of the field "Engineer, Other"

2.1 The complainant participated in the Call for expression of interest "CAST 25" (Contract Agents EU 25 carrying out various tasks within the European Institutions, hereafter "the Call") organised by the European Personnel Selection Office ("EPSO"). When applying through the electronic registration system, applicants had to indicate their option (field of interest) on the basis of the diploma obtained (Function Groups I to IV, subdivided in various fields). The complainant, who is a civil engineer but has professional experience in Information Technology (IT), registered, within Function Group IV, for the field "Engineer, Other". The remaining four fields were "Civil", "Electrical", "Mechanical" and "Plant". The complainant participated and succeeded in the first part of the pre-selection tests, which consisted of aptitude tests and a test to assess the knowledge of the European integration process and of the Institutions. On 31 August 2006 and after the tests had taken place, EPSO informed the candidates that the field "Engineer, Other" would be cancelled, and that candidates had to choose from the other existing fields. The complainant reacted immediately (by e-mail) as he considered it inadmissible that the choice had a posteriori been reduced. EPSO contacted the complainant by telephone with the offer to choose from among the four specific Engineer fields. In reaction to this, the complainant contacted EPSO again and proposed to be allowed either (i) to participate in the Call for expression of interest EPSO/TA/IT/06, which specifically concerned IT but for which the application deadline had already expired one month earlier, or (ii) to have "IT" added to the fields of the Call. Neither of these options was accepted by EPSO.

In his complaint to the European Ombudsman, the complainant alleged that EPSO had unfairly and retroactively cancelled the field "Engineer, Other" from Function Group IV of the Call.

2.2 In its opinion, EPSO stated that, w hen establishing their needs, the institutions wished to cover as many fields as possible within each Function Group. Thus, the field "Engineer, Other" had been foreseen in order to satisfy the specific needs of the institutions that could have arisen after the publication of the Call. During the procedure, the Institutions had however informed EPSO that their needs in the field engineer concerned only the four specific fields. That was why, in order to allow candidates who had chosen "Engineer, Other" further to participate in the selection, EPSO had offered them the possibility to choose from among the four specific fields which had already been fixed at the moment of the launch of the Call.

2.3 In his observations, the complainant stated that EPSO tried to put the responsibility for what had happened on the European Commission which had allegedly, in the course of the procedure ("en cours de route"), reduced the scope of the Call. Considering that about one fifth of the civil engineers who complete their studies qualify as "engineer-informatics", the complainant could reasonably have assumed that IT was included in the field "Engineer, Other". Only later, after the examinations had taken place, had this field been cancelled and the scope of the selection procedure been reduced to the other four engineer fields. The complainant also pointed out that candidates were obliged to choose from among those four fields, and were not offered a possibility to do so.

2.4 The Ombudsman notes that the Call was published on EPSO's website on 20 June 2005(2), together with (i) a document entitled "Areas of employment" setting out the four Function Groups, and (ii) the Application Guide for candidates. The Call stated that its purpose was to recruit staff with the following general competences: "For Function Group IV: administrative, communication and advisory tasks, researchers, engineers, linguists, architects". With regard to the function "Engineer", the document "Areas of employment" contained the following five fields of interest: "Civil, Electrical, Mechanical, Plant, Other". There was no reference to IT. The Application Guide stated that candidates had to select the Function Group for which they wanted to apply and could choose up to three types of positions in order of preference within the Function Group selected.

2.5 Principles of good administration require that the institutions act fairly(3). The Ombudsman notes that when the Call was published on EPSO's website on 20 June 2005, candidates were given, within the field "Engineer" of Function Group IV, the possibility to choose between five fields, namely, "Civil, Electrical, Mechanical, Plant, Other". Candidates were thus given to understand that the Call envisaged the future recruitment of engineers who did not fall within one of the first four fields or who were not interested in these fields. At first sight, the complainant's view that EPSO's decision to cancel the field "Other" was unfair would thus not appear to be without merit.

2.6 The Ombudsman notes, however, that EPSO has explained that, in the course of the procedure, the institutions concerned informed it that their staff needs as regards "Engineers" concerned only the four specific fields that were mentioned in the Call. Had EPSO nevertheless continued with the tests as foreseen, this would have resulted, as far as candidates who had opted for the field "Other" were concerned, in a reserve list that would never have been used. Pursuing the procedure would thus not have served a useful purpose. In these circumstances, the Ombudsman considers that EPSO's decision a posteriori to cancel the relevant field was reasonable and not unfair. No maladministration on the part of EPSO is therefore found with regard to this aspect of the case. As mentioned above, the Ombudsman will however make a further remark concerning the problem that led EPSO to act as it did.

2.7 The Ombudsman recalls that the present complaint concerns the substance of the decision taken by EPSO and not the way in which it was communicated to the complainant. However, the Ombudsman considers it useful to point out that it would have been preferable, from the point of view of good administration, had EPSO not only informed the complainant of the decision it had taken but also apologised for any inconvenience that this decision was likely to have caused the latter.

3 The claim for participation

3.1 The complainant claimed that EPSO should allow him either (i) to participate in the Call for expression of interest EPSO/TA/IT/06 which specifically concerned IT, or (ii) to have "IT" added to the Engineer fields in Function Group IV of the Call.

3.2 In its opinion, EPSO stated that the deadline for applications for the Call EPSO/TA/IT/06 was 24 July 2006 and that no application could be received after this date. As the complainant had not applied for this selection procedure, his request of 3 September 2006 to have his application transferred from one selection procedure to another one could not be accepted by EPSO. As regards the Call, EPSO recalled that the IT field had not been foreseen initially at the moment of the publication of the Call. EPSO also underlined that it was the services' needs, and not the candidates' ones, which could have led to offering to the candidates other fields than the four foreseen. However, EPSO had not received from the services such a request.

3.3 In his observations, the complainant pointed out that the Commission needed a lot of IT resources, given that many IT competitions are organised. The complainant argued that EPSO had chosen an "easy way out" instead of trying to find an acceptable solution for all parties.

3.4 With regard to the complainant's claim to be allowed to participate in Call EPSO/TA/IT/06, which concerned more specifically IT , by transferring his application, the Ombudsman notes that the complainant had not applied for this Call by the deadline of 24 July 2006. The complainant was therefore not entitled to participate in it. As every recruitment procedure needs to be considered separately, the Ombudsman considers that it is not possible to transfer applications from one call to another one. The complainant's claim can thus not be sustained.

3.5 With regard to the complainant's claim to have "IT" added to the Engineer fields in Function Group IV of the Call, the Ombudsman would first like to point out that the conditions for participating in a Call for expression of interest or an open competition are established by EPSO, on the basis of the needs of the institutions, and not on the basis of suggestions made by potential candidates. It is thus not possible for EPSO to insert a further field within Function Group IV. The complainant's claim can thus not succeed.

3.6 On the basis of the above considerations, the Ombudsman finds no instance of maladministration by EPSO with regard to the complainant's two claims.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

FURTHER REMARK

The Ombudsman considers that candidates should be able, on the basis of the information published in a notice of competition or a call for expression of interest, to decide whether it is in their interest to apply. In order to make this decision, the profile of the staff to be recruited should be identified and clearly defined before a recruitment procedure is started. The explanations provided by EPSO suggest that this need might not have been sufficiently heeded in the present case by the institutions that had asked EPSO to carry out the relevant recruitment procedure. Therefore, and i n order to prevent problems like those that occurred in the present case from arising in the future, the Ombudsman would like to encourage EPSO to remind the Community institutions and bodies of the need to carry out a careful assessment of their staff needs before launching recruitment procedures.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The information concerning the Call can still be found in the Archives section of EPSO's website (http://europa.eu/epso/cast27/archives_en.htm).

(2) The information concerning the Call can still be found in the Archives section of EPSO's website (http://europa.eu/epso/cast27/archives_en.htm).

(3) See Articles 10(1) and 11 of the European Code of Good Administrative Behaviour, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).