THE BACKGROUND TO THE COMPLAINT

1. The complainant is a Turkish Cypriot student. He attended a postgraduate course at the University of Cambridge during the academic year 2007-2008. The course was designed to prepare students for a PhD programme. In 2008, he applied for a PhD programme at the University of Cambridge which was due to begin in September 2008.

2. The complainant also applied to the European Commission for a scholarship from the European Community Scholarship Programme 2008-2009, EUROPEAID/126128/C/ACT/CY ('the Scholarship Programme 2008-2009'). According to the pertinent Call for Interest, the purpose of the Scholarship Programme 2008-2009 is (a) to bring the Turkish Cypriot community closer to the European Union, by awarding scholarships to Turkish Cypriot undergraduate students, graduates and teachers, and (b) to enable them to improve their technical expertise while studying and living in another EU Member State. The programme also aims to foster a better understanding of the EU. The scholarships cover periods of up to one academic year.

3. On 18 June 2008, the Evaluation Committee for the Scholarship Programme 2008-2009 informed the complainant that his application had not been successful because the programme he had applied for at the University of Cambridge had already commenced. The Evaluation Committee referred in particular to Point 15 of the second set of clarifications issued by the Commission on 19 March 2008. Point 15, entitled "Questions and answers received between 1 February - 14 March 2008 as per 5.4 of the Call for interests", contains the following. "Can one benefit from the scholarship opportunities for already started courses/programmes?" The Commission answered that "The EU Scholarship programme cannot be an opportunity for already started programmes. You may only apply for programmes starting from September 2008."

4. On 19 June 2008, the complainant requested the Evaluation Committee to reconsider his application.

5. On 4 July 2008, the Evaluation Committee informed the complainant that it had re-evaluated his application and had decided that he was not eligible under the Call for Interest for the Scholarship Programme 2008-2009. The Committee went on to point out that "the second set of published clarifications for the questions covering the period between 1 February 2008 - 14 March 2008 as per 5.4 of the Call for interests state that: The EU Scholarship programme cannot be an opportunity for already started programmes. You may only apply for programmes starting from September 2008 (Please refer the second set of clarifications, Questions and Answer part, No 15)." The Evaluation Committee then added that its task was to deliver recommendations based on the published guidelines and that they did not have the authority to interpret the rules according to the various cases presented. In conclusion, it stated that the complainant's application was not eligible under the Call for Interest.

6. On 6 July 2008, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

7. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

The Evaluation Committee's decision to reject his application is wrongful, because it is not based on valid grounds.

Claim:

The Evaluation Committee should reconsider his eligibility for the scholarship.

THE INQUIRY

8. The letter opening the inquiry was forwarded to the President of the Commission. The Commission sent its opinion on 5 February 2009, which was then forwarded to the complainant with an invitation to make observations. He did not submit any observations. By e-mail of 6 May 2009, the services of the European Ombudsman requested the complainant to clarify whether he had applied for the scholarship programme for the academic year 2009-2010. The complainant answered on the same day that he had done so.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Allegation that the Evaluation Committee wrongly decided to reject the complainant's application

Arguments presented to the Ombudsman

9. In support of his allegation, the complainant argued that the Evaluation Committee wrongfully justified its decision by referring to Point 15 of a second set of clarifications which was issued by the Commission in March 2008 and was entitled "Questions and answers received between 1 February - 14 March 2008 as per 5.4 of the Call for interest". He stated that Point 15 of the second set of clarifications contradicted Point 38 of the first set of clarifications issued by the Commission in January 2008, which was entitled "Questions and answers received until 31 January 2008 as per 5.4 of the Call for interest". Point 15 of the second set of clarifications of March 2008 contains the following question and answer: "Can one benefit from the scholarship opportunities for already started courses/programmes?" The Commission's answer was the following: "The EU Scholarship programme cannot be an opportunity for already started programmes. You may only apply for programmes starting from September 2008". Point 38 of the first set of clarifications of January 2008 contained the following question and answer: "I am currently a Master's student, am I eligible to apply for the second year of my degree?" The Commission's answer was the following: "Yes, provided that you also satisfy other criteria."

10. In its opinion, the Commission stated that the overall aim of the European Community Scholarship Programme was to put an end to the isolation of the Turkish Cypriot community. In line with this overall aim, priority was given to graduate students who had not previously studied in another Member State. Therefore, the Call for Interest was limited to students who had not previously studied in another Member State. In this regard, the Commission pointed out that Point 7 in the first set of clarifications contained the following answer: "The eligibility criteria for the graduate students include 'must not have studied in another EU Member State's university'. This means not holding a degree (undergraduate or graduate) from a university in another Member State".(emphasis added by the Commission)

11. The Commission then stated that Point 38 of the first set of clarifications was complementary to Point 15 in the second set of clarifications. It stated that they both defined how candidates were going to be assessed on the basis of the eligibility criteria. The Commission explained that Point 38 related to students who were already doing their Master's degree in the northern part of Cyprus and that the intention was to encourage students "that had not studied in another Member State's university" to apply. The target group included those Master's students that had completed their first year in a university in the northern part of Cyprus. The Commission also explained that the provision "provided that you satisfy other criteria" contained in the answer to the question in Point 38 was intended to avoid encouraging students who were already studying in another Member State. In this case, "other criteria" included not having studied in another Member State.

12. Notwithstanding the above, the Commission acknowledged that the clarifications it had issued may have led to a potential misunderstanding because (i) the other applicable criteria (that is, the requirement that a candidate start a new programme and the requirement that a candidate has not studied in another Member State) were not spelled out; and (ii) the answer was predicated on the assumption that the question was submitted by a student doing his/her Master's degree in the northern part of Cyprus.

13. In any event, the Commission noted that the Contracting Authority had, in the meantime, recognised the potential benefit for the Turkish Cypriot community of making it possible for students who had already studied in a Member State to apply to the Scholarship Programme. It had therefore broadened the eligibility criteria. The Call for Expression of Interest for the Scholarship Programme 2009-2010, launched on 11 November 2008 with a deadline of 25 February 2009, allowed students who had already studied in a Member State university to benefit from the programme, although priority was still given to students who had never studied abroad. Therefore, the complainant would now be eligible to apply for the Scholarship Programme 2009-2010.

The Ombudsman's assessment

14. The Call for Interest for the European Community Scholarship Programme 2008-2009 constitutes the legal basis for (a) assessing the Evaluation Committee's decision to reject the complainant's application and (b) for assessing the accuracy of the answers given in the two sets of clarifications issued by the Commission.

15. According to the Call for Interest, the following type of postgraduate studies falls within the scope of the programme:

"2. Studies

[...]

Scholarships for graduates:

Scholarships will also cover one academic year of a postgraduate degree at a University[1] in another Member State. ..."

The Call for Interest does not state that the academic year in question will be the first academic year of a programme. As such, it cannot be presumed from this wording that the programme is limited to students that have not yet commenced their postgraduate studies in a Member State.

16. Point 4 of the Call for Interest contains the following eligibility criterion:

"Graduates: [...]

• Must not have studied in another EU Member State's university [...]"

The meaning of the above eligibility criterion, which is not precisely worded, is not clarified in the Call for Interest itself. Potentially, the eligibility criterion excludes any student who may have undertaken any studies of any duration in a university in another Member State. For example, it could potentially be understood to exclude students who, during their undergraduate studies, had participated in an Erasmus, or equivalent programme and who subsequently wished to undertake post-graduate studies abroad. Indeed, it could exclude students who had previously undertaken summer language courses in another EU Member State's university. However, the Ombudsman does not agree that such a narrow interpretation would be correct. Rather, the Ombudsman is of the view that the eligibility criterion should be interpreted to mean that students who had completed studies abroad would not be eligible. Indeed, the Commission itself seems to share this view. Point 7 of the first set of clarifications states that the eligibility criterion means that the student must not "hold a degree (undergraduate or graduate) from a university in another Member State". Such an interpretation would also appear to be consistent with the objectives of the Scholarship Programme 2008-2009. It is not contradicted by the wording of the relevant Call for Interest, which uses the past tense when referring to a candidate's studies abroad.

17. The Ombudsman understands that the complainant had not yet obtained a degree (whether graduate or post-graduate) in another Member State when he applied for the scholarship. Thus, the above-cited eligibility criterion did not apply to him and should not have led to the rejection of his application.

18. The Call for Interest does not contain any other eligibility criterion, according to which the scholarship could not be granted for programmes which had already commenced. This means that the Commission's answer to Point 15 of the second set of clarifications is not based on a specific eligibility criterion laid down in the Call for Interest.

19. In light of the above, the Evaluation Committee's decision to reject the complainant's application, on the grounds that it was not eligible under the Call for Interest, was not valid. This error constitutes an instance of maladministration. The Ombudsman will thus make a critical remark below.

B. The claim that the Evaluation Committee should reconsider the complainant's eligibility for the scholarship

20. The Ombudsman considers that it might indeed be possible to reconsider the complainant's application for a scholarship for the year 2008-2009. However, in its opinion to the Ombudsman, the Commission indicated that the Contracting Authority has revised the eligibility criteria in the Call for Interest for the European Community Scholarship Programme 2009-2010. The Call for Interest for the EU Scholarship Programme 2009-2010 now expressly states that the Turkish Cypriot students who have already studied in another Member State can apply for the Scholarship Programme.

21. It appears from the file that the complainant has applied for a scholarship from the European Community Scholarship Programme 2009-2010. He has therefore been able to make use of the opportunity that is now being expressly offered to him under the European Community Scholarship Programme 2009-2010. The Ombudsman also notes that the complainant will, if now selected for a scholarship, not have suffered any overall loss given that the maximum duration of the scholarship is limited to one academic year.

22. Therefore, the Ombudsman considers that there are now no grounds for inquiring further into the complainant's claim and accordingly closes the present case.

C. Conclusions

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

The Evaluation Committee erred in its decision to reject the complainant's application, on the grounds that it was not eligible under the Call for Interest.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 15 July 2009

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[1] Equivalent institutions for postgraduate studies were also accepted.