The background to the complaint

1. The present complaint concerns EPSO's alleged failure to provide a satisfactory reply to the complainant's question regarding Open Competition EPSO/AST/100/09 for assistants in the secretarial field with Bulgarian citizenship.

2. The complainant, a Bulgarian national, participated in the above-mentioned selection procedure. He passed the pre-selection tests.

3. On 28 January 2010, EPSO informed the complainant that, following the examination of his on-line application, the Selection Board (hereinafter 'the Board') decided not to admit him to the next stages of the competition, because it considered that he did not fulfil the requirements laid down in point III.2.1 of the Notice of Competition (hereinafter 'the Notice').

4. In accordance with point III.2.1 of the Notice, the applicants were required to have:

"(a) either a level of post-secondary education attested by a diploma directly relevant to the nature of the duties; or

(b) a secondary education attested by a diploma giving access to higher education, followed by at least 3 years of professional experience directly relevant to the nature of the duties".

5. The complainant considered that the Board's decision to exclude him from the competition was wrong and filed an appeal. He argued that the degrees he had obtained (a Masters Degree in International Security and a Bachelor's Degree in International Politics and Intelligence Studies) were "more than enough to satisfy the stated requirements for a secretarial position". The complainant addressed several questions to EPSO, including the following: "What are the university-level degrees that EPSO would consider as directly relevant for the position mentioned in EPSO/AST/100/09?"

6. In its reply of 3 March 2010, the Board referred to the description of the duties listed in the Notice, which included a number of secretarial tasks, word processing and various administrative tasks associated with file management. It confirmed its conclusion that the complainant's diplomas were "not directly relevant to the secretarial field".

7. In his complaint to the Ombudsman, the complainant argued that EPSO failed to provide an adequate reply to the question quoted above and that he was denied access to the further stages of the competition on the basis of a "vague, impersonal" explanation given by means of a standard letter. He considered that the very fact that he had obtained degrees in two different countries (the United Kingdom and Bulgaria) was indicative of the fact that he would be capable of executing the secretarial tasks mentioned in the Notice.

8. On 30 August 2010, following a request by the Ombudsman's services, EPSO provided the complainant with a further reply, in which it reiterated that none of the complainant's qualifications were directly relevant to the nature of the duties described in the Notice. EPSO gave the following further clarifications:

"The Selection Board members do not draw up a list of diplomas which are directly relevant, however they draw up the criteria which are used to assess whether candidates fulfil the admission criteria or not - it must specify the scope of the criteria laid down in that specific Notice of Competition and it may not go beyond the scope of the admission criteria laid down. This criterion is decided upon before the Board examines any applications, in order to ensure equal treatment of all candidates competing in that competition. Diplomas from the 27 Member States and from countries worldwide may be accepted, if of course they are directly relevant".

9. The complainant was not satisfied with the additional explanations set out above. Having reviewed his arguments, the Ombudsman concluded that this issue merits investigation.

The subject matter of the inquiry

10. The Ombudsman opened an inquiry into the following allegation:

Allegation:

EPSO failed to provide a satisfactory reply to the question regarding which university-level degrees were considered directly relevant to the secretarial duties mentioned in the Notice of the relevant competition.

11. In addition to the above allegation, the complainant put forward further grievances, for instance that EPSO's decision to reject his application on the ground that his diplomas were not directly relevant to the duties of assistant in the secretarial field was wrong, or that EPSO failed to address the other questions raised by him. The complainant finally claimed that EPSO should give him a fair chance to participate in this competition. After having carefully reviewed the material provided together with the complaint, the Ombudsman concluded that: (i) the complainant did not provide evidence to show that the Board had committed a manifest error of assessment when deciding that his diplomas were not directly relevant to the duties of an assistant in the secretarial field; and that (ii) the information provided by EPSO to the complainant as regards the other questions he had asked appeared adequate and sufficient. In view of the above, the Ombudsman concluded that there were insufficient grounds for an inquiry into these aspects of the complaint.

The inquiry

12. The Ombudsman opened the present inquiry on 4 October 2010. EPSO sent its opinion in French on 17 January 2011 and provided its English translation on 3 February 2011. The complainant submitted his observations on 28 March 2011.

The Ombudsman's analysis and conclusions

A. Concerning EPSO's alleged failure to provide a satisfactory reply to the complainant's question

Arguments presented to the Ombudsman

13. The complainant alleged that EPSO failed to provide him with a satisfactory reply to the question regarding which university-level degrees the Board considered directly relevant to the secretarial duties mentioned in the Notice.

14. In its opinion, EPSO stated that, after having checked all the applications which were considered eligible for the said competition, it emerged that no candidate had been deemed eligible on the basis of a post-secondary diploma in the field, as laid down in point III.2.1.(a) of the Notice. None of the diplomas recorded in the registered applications were relevant to the secretarial tasks for which the competition was organised. Consequently, candidates who were invited to the following stages of the competition were accepted solely on the basis of a minimum of three years of professional experience in the secretarial field gained after obtaining a secondary education diploma, as provided in point III.2.1.(b) of the Notice.

15. EPSO recalled that it had already informed the complainant that the Board did not establish a list of diplomas relevant to the competition. Prior to examining the applications, the Board did however identify a set of criteria on the basis of which it would assess whether candidates met the eligibility requirements for this competition.

16. In order to assess the relevance of the diplomas and the experience relevant to the nature of the duties described in the Notice, the Board decided "to accept diplomas/professional experience acquired through not only office work but also work in the field of languages, public administration and commercial management". EPSO considered that these types of diplomas and professional experience were "clearly perfectly relevant" to carrying out secretarial duties and administrative tasks relating to file and document management. However, diplomas in law, engineering, medicine, science, sociology, European studies, and so on were not deemed to be directly relevant to the nature of the duties in the secretarial field, as laid down in the Notice.

17. EPSO reiterated that the complainant's Masters Degree in International Security and his Bachelor's Degree in International Politics and Intelligence Studies could clearly not be considered directly relevant to the secretarial duties in question. Given that, moreover, the complainant did not have the required minimum professional experience, he could not have been admitted to the next stages of the competition.

18. EPSO referred to the case-law of the Court of Justice of the EU, according to which "a selection board cannot [...] be criticized for excluding the holder of a degree which very clearly relates on the face of it to a main field of study which has no particular relevance to the sphere of activity of the posts to be filled"[1]. EPSO recalled further that in accordance with the case-law "... the eligibility criteria should be interpreted in the light of the objectives of the competition, as they follow from the description of duties relating to the post to be filled. Consequently, the section relating to the nature of the duties and the section relating to the eligibility criteria of the Notice must be considered together"[2].

19. In his observations, the complainant submitted that the decision of the Board regarding the types of diplomas accepted was completely arbitrary, since no specific criteria or standard for testing or evaluating was used in order to decide on the relevance of a particular diploma. The complainant argued that objective criteria required that certain rules or benchmarks be applied to all diplomas in order to judge whether they were relevant. He was unable to understand why a diploma in languages and commercial management would be perfectly relevant, whereas one in law or European studies would not be.

20. In the complainant's view, the lack of such pre-established criteria against which all diplomas were to be evaluated showed poor judgement, maladministration and discrimination against all applicants holding a university diploma.

21. He added that the Notice was also not in conformity with Article 1(d) of Annex III to the Staff Regulations, which provides that the notice shall state "...the diplomas and other evidence of formal qualifications or the degree of experience required for the posts to be filled".

22. The complainant finally considered that the Board infringed Article 5(5) of the Staff Regulations, according to which "identical conditions of recruitment and service career should apply to all officials belonging to the same function group".

23. In view of the foregoing, the complainant maintained his position that EPSO had committed maladministration in this case and that it had failed to comply with its own procedures, according to which "the recruitment aims to secure for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible [...] basis from among the citizens of the Member States of the European Union".

The Ombudsman's assessment

24. The Ombudsman recalls at the outset that the present inquiry is limited to investigating EPSO's alleged failure to provide a satisfactory reply to the question regarding which university-level degrees were considered directly relevant to the duties mentioned in the Notice in question.

25. The Ombudsman considers that the reply provided by EPSO in the course of the present inquiry is adequate for the following reasons:

(i) EPSO informed the complainant that prior to the assessment of the applications, the Board identified the specific fields of studies that it considered relevant, namely, studies in the field of languages, public administration and commercial management. The Ombudsman considers that by specifying the relevant fields of studies, EPSO did reply to the question regarding which university-level degrees it considered directly relevant to this competition. In addition, EPSO also gave examples of certain degrees, such as degrees in law, engineering, medicine, science, sociology and European studies, that it did not consider directly relevant to the secretarial duties in question.

(ii) EPSO further informed the complainant that, after having checked the applications which were considered eligible, it emerged that no candidate was deemed eligible on the basis of his/her post-secondary diploma, since none of the diplomas recorded in the registered applications were relevant to the secretarial tasks for which the competition was organised.

26. The Ombudsman regrets that EPSO did not provide an adequate reply to the complainant's question before he launched his inquiry. However, considering that EPSO provided such a reply in the course of the present inquiry, the Ombudsman takes the view that further inquiries into this allegation are no longer needed.

27. The Ombudsman notes that the complainant was not happy with EPSO's above-mentioned reply. In the complainant's view, in assessing the relevance of candidates' diplomas to the secretarial duties in question, EPSO failed to identify and apply specific criteria or benchmarks defined in advance. The complainant considered that there was no system or set of criteria in place against which to evaluate the candidates' diplomas. According to him, the decision of the Board concerning the relevance of specific diplomas was thus an arbitrary one.

28. It should be noted that the complainant's submissions outlined above go beyond the scope of the present inquiry[3], since they do not concern EPSO's reply to the complainant's question regarding which university-level degrees were considered directly relevant but rather the preparation of the selection procedure by EPSO and the substantive evaluation of diplomas by the Board. The Ombudsman recalls in this context that, in his complaint, the complainant had already contested the decision of the Board concerning the relevance of his diplomas but that, for the reasons set out in paragraph 11 above, this issue was not taken up for inquiry. In the Ombudsman's view, the complainant has not put forward any arguments that would oblige him to reconsider this decision.

29. In any event, the Ombudsman considers that there is nothing to suggest that there was a manifest error on the Board's part in the present case. EPSO explained that the Board interpreted the eligibility criteria in light of the objectives of the competition, as they result from the description of the duties in Section II of the Notice. The Notice stipulated that the secretarial duties included organising meetings, filing documents and correspondence, monitoring correspondence, keeping appointments in diaries, word processing in more than one of the EU languages, formatting electronic documents and various administrative tasks associated with file management which require the use of IT tools. The Ombudsman recalls in this context that, in accordance with the established jurisprudence of the Court of Justice of the EU, Selection Boards enjoy a wide margin of discretion when assessing whether candidates' diplomas or professional experience correspond to the level required by a competition notice[4]. In the Ombudsman's view, the Board's conclusion in the present case that only diplomas in the field of languages, public administration and commercial management were to be considered directly relevant to the above-mentioned secretarial duties falls within its broad margin of appreciation.

30. In his observations, the complainant advanced two additional arguments, namely, that (i) the Notice did not comply with Article 1(d) of Annex III to the Staff Regulations, which provides that notices of competition shall state "...the diplomas and other evidence of formal qualifications or the degree of experience required for the posts to be filled"; and (ii) the Notice was also contrary to Article 5(5) of the Staff Regulations, according to which "identical conditions of recruitment and service career should apply to all officials belonging to the same function group". Given that the requirement of prior administrative approaches to EPSO has not been complied with, the Ombudsman is not entitled to deal with these further issues at present, since EPSO has not yet been given an opportunity to address them and to formulate its position on them[5].

31. In any event, it should be noted that, in the present case, the Notice required a "level of post-secondary education attested by a diploma directly relevant to the nature of the duties". This would appear to be sufficient. Article 1(d) of Annex III to the Staff Regulations does not introduce a duty for the administration to list every possible diploma that could be directly relevant to the competition.

32. The Ombudsman recalls, however, that a similar issue was raised in complaint 1993/2007/RT. In his closing decision[6], the Ombudsman invited EPSO to consider providing, in what was then called the Guide for Applicants, "examples of relevant fields of studies related to the posts of assistants in the secretarial field". The Ombudsman noted that, in this way, EPSO would avoid possible misunderstandings that could result from the diversity of qualifications relating to the secretarial field in the Member States. In its reply, EPSO submitted that it contemplated adopting a policy of providing a set of examples of diplomas for every competition in future.

33. The Ombudsman maintains his view that it would be useful if EPSO were to provide candidates with examples of relevant fields of studies relating to the post of assistant in the secretarial field. The Ombudsman, therefore, reiterates the further remark made in his decision closing his inquiry into complaint 1993/2007/RT. It would be up to EPSO to consider whether the information should be provided in the notices of competition themselves or in a different document.

34. As regards Article 5(5) of the Staff Regulations, the Ombudsman notes that all the applicants in the present competition were evaluated on the basis of the two conditions laid down in point 2.1 of the Notice and had to prove that they complied with at least one of these conditions. The fact that there were no candidates who were considered eligible on the basis of their post-secondary education is not an indication that these candidates were discriminated against in any way.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There are no grounds for further inquiries into the complainant's allegation.

The complainant and EPSO will be informed of this decision.

Further remark

Reiterating the further remark made in his decision closing his inquiry into complaint 1993/2007/RT, the Ombudsman suggests that, in order to avoid possible misunderstandings, EPSO could consider including in the information provided to candidates examples of relevant fields of studies relating to the post of assistant in the secretarial field.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 January 2012

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[1] Case 34/80 Authié v Commission [1981] ECR 665, paragraph 16.

[2] Case T-146/99 Teixeira Neves v Court of Justice [2000] ECR-SC I-A-159 and II-731, paragraphs 34 and 36.

[3] See paragraph 10 above.

[4] Case F-12/05 Tas v Commission [2006] ECR-SC I-A-79 and II-A-1-285, paragraph 39.

[5] Article 2(4) of the Ombudsman's Statute.

[6] Available at: http://www.ombudsman.europa.eu/cases/decision.faces/en/3361/html.bookmark