Strasbourg, 16 Novemebr 2006

Dear Mr X,

On 31 January 2006, you lodged a complaint with the European Ombudsman against the European Personnel Selection Office ("EPSO"). The complaint concerned the alleged wrongful exclusion of your application for an Open Competition.

On 7 March 2006, you sent additional information to me.

On 16 March 2006, I informed the director of EPSO of your complaint and asked him to submit an opinion on it by 30 June 2006. On 27 March 2006, you sent an e-mail to me requesting that your complaint be treated urgently, since the tests of the competition were to take place shortly thereafter. My services replied to your query by telephone on 28 March 2006. On 12 April 2006, I informed EPSO of your request and asked EPSO to take it into account for the preparation of its opinion.

On 14 June 2006, EPSO sent its opinion in French. On 21 June 2006, EPSO sent a translation of the opinion into your language, which was forwarded to you on 30 June 2006, with an invitation to make observations, if you so wished. No written observations have been received from you.

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

THE COMPLAINT

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

T he complainant submitted an on-line application to EPSO for an Open Competition. By letter of 27 October 2005, the President of the Selection Board informed the complainant that his application would be cancelled in the absence of confirmation, which had to be made before 29 November 2005.

On 28 October 2005, the complainant sought to confirm his participation in the competition through his personal EPSO user-account, the so-called "EPSO profile". Through this profile, he chose his second language for the competition, as well as the place for his examination. During the on-line process, however, the complainant noted that his internet connection had been briefly interrupted.

Despite this, EPSO informed him, on 20 December 2005, that his application had been annulled since he had failed to confirm his registration in the competition. On 16 January 2006, the complainant replied to EPSO and underlined that he had, in fact, confirmed his application.

In its reply of 19 January 2006, EPSO explained that its records did not show that the complainant had validated his application. EPSO also noted that, as stated in the annex to the Notice of Competition, the complainant had not submitted his request for the reconsideration of the decision within the 20-day deadline. On the same date, the complainant addressed a further e-mail to EPSO, in which he insisted that he had confirmed his application before 29 November 2005. He also explained that, between 19 December 2005 and 16 January 2006, namely, during the Christmas holidays, he had not been able to have access to internet and, as a result, he could not check his EPSO profile during that period.

The complainant asked EPSO to reconsider its decision, and argued that the fact that candidates had been advised to consult their EPSO profile regularly did not impose a precise obligation on them to consult their EPSO user-account over a given period. EPSO confirmed its decision in a reply dated 31 January 2006, whereupon, the complainant submitted the present complaint to the Ombudsman.

The complainant made the following allegation and claim, on which the Ombudsman asked EPSO to submit an opinion:

The complainant alleges that EPSO wrongly excluded him from an Open Competition, on the ground that he had not confirmed his application through his EPSO profile.

The complainant also claims that he should be readmitted to the first test of the competition.

In addition, the Ombudsman asked EPSO to comment on the information given to candidates on the means to verify the status of their applications, in particular, on whether they could have known if they had succeeded in confirming their application by, for instance, consulting their EPSO profile.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO first explained the general procedure to be followed by candidates for their on-line registration to a competition via the EPSO website, and the particular rules governing the complainant's Open Competition. EPSO pointed out that point C.1. of the Notice of Competition stated that candidates had to confirm their intention to participate in the tests via their EPSO profile, indicating also the city where they wished to take the examinations. For candidates who had not confirmed the requested information within two months after the deadline for applications, EPSO assumed that they were no longer interested in taking part in the competition. EPSO underscored that the absence of confirmation by a candidate would therefore result in the cancellation of his/her application.

EPSO explained that, on 4 October 2005, a message was sent to the section "Latest News" of all candidates' EPSO profiles, informing them that, on 27 October 2005, a message would be inserted in their EPSO Profile inviting them to confirm their application by 29 November 2005, at the latest. Candidates were also informed that failure to do so would result in the annulment of the candidate's application. Similar information was also posted on the EPSO website, under the section "Ongoing competitions".

As regards this particular case, EPSO explained that its services sent the complainant an e-mail on 3 November 2005, to which they annexed a letter dated 27 October 2005. The letter explained that the complainant's application for the Open Competition had been registered but that, as set out in point C.1 of the Notice of Competition, he had to confirm his participation in the competition by 29 November 2005, at the latest. The complainant was also informed that failure to comply with that requirement would result in the annulment of his application. In the absence of a proper confirmation of his application, EPSO informed the complainant, on 20 December 2005, that his application had been annulled. On 16 January 2006, however, the complainant contested EPSO's decision. EPSO replied on 19 January 2006, informing the complainant of the applicable rules and underlying that the annex to the Notice of Competition clearly stated that any request for the reconsideration of its decision had to be made in writing within 20 days from the date when EPSO informed the applicant of its decision. EPSO pointed out that, since the decision on the complainant's application had been made on 20 December 2005, the deadline for the complainant to contest it had expired on 9 January 2006, whereas his appeal had been submitted only on 16 January 2006.

Even though the complainant restated his arguments in a letter dated 23 January 2006, EPSO confirmed its decision in its reply of 31 January 2006.

EPSO explained that the complainant had access to all information concerning his application to the O pen Competition through his EPSO profile. By consulting his personal EPSO profile, the complainant should have been able to access information sent by EPSO on 27 October 2005 concerning the need to confirm his application for the competition by 20 December 2005, or otherwise his application would be annulled. EPSO emphasized that, had the complainant done so, a message would have appeared in his EPSO profile, confirming his registration. On the basis of the information on the complainant's EPSO profile, it appears that, on 4 November 2005, he had in fact opened EPSO's letter of 27 October 2005, although no confirmation message had been sent at the time. EPSO enclosed with its opinion a copy of the complainant's EPSO profile.

EPSO considered that the complainant had not been able to prove that he had in fact confirmed his application. In addition, by failing both to check on the status of his application and to reply to EPSO's decision within the 20-day deadline, the complainant had not paid proper attention to the procedures necessary for the completion of his application. EPSO therefore concluded that its services had acted correctly when, in the absence of a confirmation by the complainant, they decided to annul his application.

The complainant's observations

The Ombudsman did not receive any observations from the complainant.

THE DECISION

1 The decision to exclude the complainant from an Open Competition

1.1 The complainant alleges that EPSO wrongly excluded him from an Open Competition, on the grounds that he had not confirmed his application through his "EPSO profile".

The complainant argues however that, o n 28 October 2005, he had sought to confirm electronically his participation in the competition, although his internet connection was briefly interrupted. The complainant also explains that, between 19 December 2005 and 16 January 2006, namely, during the Christmas holidays, he had not been able to have access to internet and, as a result, he could not check his EPSO profile during that period.

1.2 EPSO argues that the complainant has not been able to prove that he had confirmed his application, as requested in a message sent by EPSO to the complainant's EPSO profile on 27 October 2005, informing him that, pursuant to point C.1 of the Notice of Competition, he had to confirm his application to the competition by 29 November 2005, and that failure to do so would result in the annulment of his application. EPSO points out that, had he done so, a message would have appeared in his EPSO profile, confirming his registration.

EPSO also notes that, although the complainant had contested his exclusion from the competition on 16 January 2006, his appeal was submitted once the 20-day deadline set out in the Notice of Competition had elapsed. Since the decision on the complainant's application had been made on 20 December 2005, the deadline to contest it expired on 9 January 2006, whereas the complainant's request had only been sent on 16 January 2006.

1.3 On the basis of available information, the Ombudsman notes that the instructions to register for the Open Competition in question were described in point C ( "How to apply") of the Notice of Competition, which also referred to the Guide for Applicants, to be found on EPSO's website.

Point C. 1 of the Notice of Competition set out the stages to be followed by candidates in order to electronically submit their applications through their EPSO profile. This section provided that,

"[I]f you want to apply, you must do so via the Internet by going to the EPSO website and following the instructions there on the successive stages of the procedure".

The Notice of Competition further stated that the online registration had to be made by no later than 12 noon, Brussels time, on 29 September 2005. It appears that the complainant successfully made the initial online registration and was given a candidate number.

1.4 The Notice of Competition also asked candidates, o nce registered, to consult the EPSO website in order to follow the progress of the competition, and to check the test dates and locations. It further stated that,

"[W]ithin one month following the final date for inscription, EPSO will invite you to confirm your inscription and your choice of language and where applicable, to choose the city in which you wish to sit the pre-selection tests/written test. The invitation and confirmation will take place solely via your EPSO profile. If you do not confirm your application within two months following the final date for inscription, EPSO will consider that you have withdrawn your application. Your application will therefore be terminated."

1.5 As regards the appeal procedures to contest any decision, it appears that the annex to the Notice of Competition included the following provisions:

"If, at any stage of the competition, you consider that your interests have been prejudiced by a particular decision, you can:

- Request that your application be reconsidered

You can request that your application be reconsidered by sending a letter within 20 days of the date of dispatch on-line of the letter informing you of the decision, setting out the reasons, to European Personnel Selection Office (EPSO)."

1.6 The Ombudsman notes that, on 27 October 2005, pursuant to the above provisions, EPSO made clear to all candidates who had applied for the Open Competition that they should confirm their registration by no later than 29 November 2005, namely, within two months following the final date for registration (29 September 2005).

1.7 While the complainant contends that he had confirmed his application on 28 October 2005, EPSO argues that no trace of the confirmation could be found in the complainant's EPSO profile.

The Ombudsman is mindful of the fact that the complainant tried indeed to confirm his application. The Ombudsman must however conclude that the complainant failed to submit substantial evidence, that he had in fact carried out all the necessary steps to confirm his application. The Ombudsman also notes that the complainant himself acknowledges that, during the on-line process to confirm his application, he "[...] had noted that his internet connection was briefly interrupted".

The Ombudsman also notes that the complainant should have been able to find out or to check whether the confirmation of his application had been successful by consulting his EPSO profile since, following a successful confirmation, a message validating the complainant's registration should have appeared in it.

1.8 In the absence of any such message, apparently as a result of the malfunction of the complainant's internet connection, the Ombudsman points out that the complainant could have requested EPSO to reconsider its decision within 20 days from the date when that decision was communicated to him (on 20 December 2005). The Ombudsman considers that the explanation of the complainant that he was on holiday during that period cannot constitute a justified excuse for not respecting the above mentioned deadline. The Ombudsman therefore considers that, by failing to challenge EPSO's decision within the deadline set out in the annex to the Notice of Competition, the complainant has foregone any of the rights to which he might have been entitled.

1.9 On the basis of the above considerations, the Ombudsman concludes that no instance of maladministration by EPSO can be established.

1.10 As a consequence of these findings, the complainant's claim that he should be admitted to the pre-selection tests cannot be sustained.

2 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.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS