Dear Mr C.,
On 14 March 1997 you made a complaint to the Representation of the European Commission in Vienna concerning the age limit in the competition organised by the Council of the European Union. The Representation in Austria has transmitted your complaint to the European Ombudsman on 2 April 1997.
The European Ombudsman received a number of complaints from unsatisfied union citizens who complained about age limits. Therefore, on 14 July 1997, I decided to initiate an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions.
On 24 July 1997, I informed the Secretary General of the Council of your complaint, as I had already opened an own initiative inquiry on the subject matter. The Council sent its opinion relating to my own initiative inquiry on 12 May 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 22 May 1998, I received your observations on the Council's opinion. On 4 November 1998, I completed my own initiative inquiry.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

In his complaint the complainant explained that he had read from a newspaper that the Council is recruiting administrators. The Notice of Competition required that the applicants were born after 31 December 1960. According to the complainant this in fact discriminated against potential applicants.
He wrote to the General Secretary of the Council and to President Santer pointing out that the decision to use age limits must have been ill-considered, especially in a period in which Europe is facing high unemployment, in particular, amongst well qualified candidates over the age of forty. He asked the Council to take a position on the above claim he put forward. Furthermore, he requested that the Council would decide to renounce from all discrimination on the grounds of age and publish a new "age-neutral" Notice of Competition.

THE INQUIRY

The Council's opinion on the own initiative into the use of age limits
On 2 March 1998, the Council of the European Union sent its comments which can be summarised as follows:

The institutions not only enjoy discretion in their choice of the most appropriate means of meeting their personnel requirements, but also broad discretion in drawing up the requirements of a competition.

Age does not appear among the criteria on the basis of which any distinction made at the time of recruitment is prohibited by the Staff Regulations.

Under Article 1 (g) of Annex III to the Staff Regulations, one of the conditions which may, where appropriate, be legitimately determined by the appointing authority is an age limit.

It remains to be seen whether the Staff Regulations comply in this respect with the general principles of Community law, particularly with respect for fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

The Council noted that the Treaty of Amsterdam has not yet entered into force.

At the beginning of the 1990s, the question of whether age should play any part as a selection criterion was examined. After noting the undesirable consequences for the institution of abolishing all age limits, such as successful candidates reaching retirement age, the age limit was set at 50 for a whole series of competitions.

After 1995, arrangements for the joint organisation of competitions were made and harmonised conditions of access thereto, which included setting an age limit of 35 for candidates for posts at starting grades, taking into account the problems of unemployment of young people living in the European Union.

As regards the most recent competitions concerning the new Member States, the age limits were set at 55 and 45 to take account of the experience required for such posts.

Recently launched notices of competition provide for the possibility of extending the age limit for a maximum of six years in certain cases.

Rules governing age limits are not laid down mechanically, but vary according to the nature of the department's needs, in accordance with the requirements of Article 27 of the Staff Regulations, and allow a distinction to be made between candidates to take account of their respective situations.

The General Secretariat of the Council considered that the application of age limits on the basis of the posts to be filled by successful candidates of a competition - as provided by the Staff Regulations, particularly Article 1 (g) of Annex III - together with the possibility of an extension to take account of specific situations, is not a "discriminatory" measure in the sense given to this concept by the European Court of Human Rights and the Court of Justice of the European Communities.

For information, the General Secretariat added that it is currently in the process of discussing a proposal for an amendment to the Staff Regulations in respect of equal treatment(1).

The complainant's observations
In his observations the complainant maintained his complaint to the Ombudsman. He stated that he does not agree with the Council's position. According to him, discrimination on the grounds of age still persists and the Council appears not to be willing to do anything about it.

THE DECISION

1. Own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the Community institutions
1.1 The Ombudsman's decision on 14 July 1997 to open an own initiative inquiry 626/97/BB into the use of age limits for the recruitment to the European institutions was motivated by a considerable number of complaints, including that of the complainant. On the basis of Article 138e of the Treaty Establishing the European Community the Ombudsman is empowered to conduct an inquiry in relation to possible maladministration in the activities of Community institutions and bodies.
1.2 Before launching his own initiative inquiry the Ombudsman had a comparative research done about the use of age limits in the various Member States. This research indicated that, currently, there does not exist a common legal or constitutional principle either allowing or prohibiting age discrimination in the public sector. Member States apply an age limit which is in general higher than 35 years. However, a tendency towards prohibiting age limits as discriminatory was apparent in some Member States.
1.3 The Ombudsman's own initiative inquiry as well as his inquiries into individual complaints indicated that the age limits used by the Community institutions vary from 35, 40 and 45 to 55. The reasons for using them has been explained, for example, for balanced management in the career structure, geographical balance, good ratio between men and women employees, problems increasing with age in adapting to a multicultural and multilingual environment, possibility of mobility decreasing with age, unemployment of young people, and for the possibility of limiting the number of candidates.
1.4 As regards the human rights provisions on non-discrimination, the own initiative inquiry revealed that it cannot be excluded that the scope of application of the European Convention of Human Rights could also cover discrimination on the grounds of age in cases were there exists no objective and reasonable justification for such discrimination.
1.5 The Ombudsman found that age is to be regarded as a possible cause of discrimination. As regards the European Union, this has been particularly clarified by the Treaty of Amsterdam and, therefore, the need to combat age discrimination will only culminate by its entry into force.
1.6 Based on his own initiative inquiry the Ombudsman is of the view that each Union citizen should have the possibility to seek employment within the European Union administration. If it is considered appropriate to limit this possibility, this needs to be carried out with sufficient justification avoiding in the recruitment procedures any elements which might be considered discriminatory or arbitrary.
2. The legal basis for the use of age limits
2.1 The Ombudsman understands that based on Article 1, paragraph 1 (g) of Annex III to the Staff Regulations, the Council of the European Union and other Community institutions may specify an age limit in notices of competition. However, the Ombudsman is of the view that the current practice within the Community institutions of setting various age limits with differing grounds and without sufficient justification can not be considered as correct application of age limits.
2.2 The Ombudsman's inquiries appear to indicate that the Community institutions could envisage the setting of one common age limit with appropriate reasoning and sufficient justification.
3. Policy principle to abandon the use of age limits
3.1 The European Parliament decided on 20 October 1997 to raise the age limit to 45 years for the upcoming competitions for the starting grades with a review after two years on the basis of a report to be submitted by the personnel service to the Secretary-General of the Parliament.
3.2 Furthermore, the European Commission decided on 21 January 1998 on a policy principle to abandon age limits in its recruitment policy. In its comments to the Ombudsman's own initiative inquiry, the Commission considered it necessary to put its decision into practice in common agreement with other institutions and that, in the meantime, the Commission will apply an age limit of 45.
3.3 If the Community institutions are not able to abandon the use of age limits, it would be preferable to clarify the relevant provision of the Staff Regulations in order to guarantee that age limits are not applied in a discriminatory or arbitrary manner.
3.4 In view of the above developments, the Ombudsman recognises that there is indeed a need for a common inter-institutional agreement. On the basis of the European Ombudsman's inquiries on his own initiative and taking into account the European Commission's announcement on a policy principle to abandon the use of age limits with a possible inter-institutional agreement, the Ombudsman found no grounds to further pursue his own initiative inquiry into the use of age limits.
Conclusion
The European Ombudsman's inquiry into this complaint has not revealed an instance of maladministration by the Council of the European Union and, therefore, he has decided to close the case.

FURTHER REMARKS

The Ombudsman has requested that the European Commission keep him informed about the action undertaken in order to obtain such a common inter-institutional agreement to abolish age limits.
The Secretary General of the Council of the European Union will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN

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(1) Proposal for a Council Regulation (Euratom, ECSC, EEC) amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities in respect of equal treatment, COM(96) 77 final, 4.3.1996.