Strasbourg, 31 January 2008

Dear Mrs R.,

On 26 September 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/AD/35/05 for Bulgarian-language linguistic administrators in the field of translation.

On 8 November 2006, I forwarded your complaint to the Director of EPSO and informed you accordingly.

On 9 November 2006, you clarified your complaint in an additional letter, which I forwarded to the Director of EPSO.

On 17 January 2007, EPSO sent its opinion, which I forwarded to you with an invitation to make observations.

No observations were received from you.

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

THE COMPLAINT

The facts according to the complainant can be summarised as follows:

At the outset, the complainant stated that she wished to complain about "the negligence with which EPSO/Unit A treated [her] file from 11 April 2005 till 8 September 2006."

On 11 April 2005, the complainant received an acknowledgement of receipt of her unsolicited application which she had sent to the European Commission. The Commission stated that her file would be examined and she was asked to send it copies of her diplomas and professional certificates.

On 21 November 2005, she received an e-mail from the Commission in which she was informed that (i) Open Competition EPSO/AD/35/05 to recruit Bulgarian-language linguistic administrators (AD5) in the field of translation had been launched; (ii) the deadline for registration was 6 December 2005; and (iii) she could find further information concerning that Open Competition on EPSO's website.

The complainant examined the Notice of Competition and noted the statement therein that the retirement age in the institutions was 65 years.

Subsequently, on 29 November 2005, she addressed EPSO by e-mail. She asked, inter alia, what the age limit for taking part in the competition was ("Quelle est la limite d'âge pour le concours AD 35/05?").

On the same day, EPSO replied that there was no age limit ("Pas de limite d'âge").

Afterwards, the complainant registered for the competition.

She invested time and effort in preparing for the competition tests.

On 22 June 2006, EPSO informed her that she had passed the admission tests and she was invited to submit a full application. She was also invited to sit the written tests. Using its standard reply to candidates who passed the admission tests, EPSO also informed her that her written tests would be checked only if it were shown, on the basis of her full application, that she fulfilled the conditions of admission, as specified in the Notice of Competition.

On 6 July 2006, the complainant submitted her full application, including copies of her diploma as well as of her passport, and, subsequently, took part in the written tests.

After the written tests, on 8 September 2006, the complainant was informed by EPSO that (i) according to section E.7 of the Notice of Competition and Article 52 of the Staff Regulations, retirement for staff is automatic at the age of 65 years; (ii) on the basis of her full application, it came to light that she was over 65 years of age, and (iii) therefore the Selection Board rejected her candidature because it could not lead to recruitment.

In her complaint to the European Ombudsman, the complainant alleged that EPSO wrongly informed her that there was no age limit for Open Competition EPSO/AD/35/05 (first allegation).

The complainant also alleged that EPSO was negligent in failing, over a period of 16 months, to check her personal data which she submitted before and during the competition procedure (second allegation).

In her additional letter of 9 November 2006, the complainant clarified that her claim was that EPSO should admit her to the next stages of the competition since it had allowed her to take part in the first and second stages of the competition (claim).

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

First, EPSO referred in detail to the information provided to the candidates in the Notice of Competition, which was published in Official Journal C 282 A of 15 November 2005. It stated that the Notice of Competition provided for different, successive stages of the competition, namely: (i) registration of the candidature before the deadline of 15 December 2005; (ii) the preliminary selection allowing admission to the competition; (iii) the admission tests; (iv) the written tests; (v) submission and checking of the full application; (vi) the oral tests; and (vii) the establishment of the reserve list. The conditions of eligibility for candidates were specified in section A.II of the Notice of Competition and included, inter alia, the general eligibility conditions, that is, that a candidate must (i) be a citizen of one of the Member States of the European Union or, under the terms of Article 28(a) of the Staff Regulations, a citizen of one of the accession countries, namely, Bulgaria and Romania; (ii) have full rights as a citizen; (iii) have fulfilled any obligations imposed (...) by the laws on military service; and (iv) meet the character requirements for the duties involved. Point B of the Notice of Competition foresaw that "EPSO is organising admission tests with a view to carrying out a preliminary selection allowing admission to the competition. The candidates invited to the admission tests "(...) will be those who are found to meet the general terms and conditions (...) after EPSO has carried out a preliminary eligibility check based on the information given in the registration forms (...)". The section D additionally stipulated that no documents are required at this stage. Candidates will subsequently be invited to send a full application. Moreover, section B.1 stated that the 450 candidates with the highest combined marks for the tests (and a pass mark in each) will be invited to submit a full application with a view to possible admission to the following stage of competition. Finally, Section E.7 drew the candidates' attention to the applicable retirement regime by stating that:

"(...) retirement age for staff is laid down in the Staff Regulations as follows:
- either automatically at the age of 65 years
- or, at the official's own request, at the age of 63 years or where the official is between 55 and 63 years of age and satisfies the requirements for immediate payment of a pension
- exceptionally, at the official's own request and where it is considered to be in the interest of the service, at not later than the age of 67."

Second, EPSO referred to the background of the case and recalled that the complainant participated in Open Competition EPSO/AD/35/05, which was designed to draw up a reserve list of Bulgarian-language linguistic administrators in the field of translation. After having correctly made the e-registration for the competition, she took part in the admission tests organised on 31 May 2006 in Brussels. She was one of the candidates who received the best 450 results in the admission tests and thus she was invited to submit her full application and take part in the written tests. However, according to the Notice of Competition, the latter could be only checked if the Selection Board were to decide that the complainant satisfied the eligibility criteria contained in the Notice of Competition. The complainant was informed of that condition on 22 June 2006.

On 12 July 2006, the Selection Board checked the complainant's full application and noted that she was over 65 years of age. For that reason, the Board decided that the complainant's candidature should be rejected because, on the basis of the above point E.7 of the Notice of Competition, it could not lead to her recruitment.. On 8 September 2006, EPSO informed the complainant of the Board's above decision.

By e-mail of 15 September 2006, the complainant expressed her disappointment with EPSO's decision and with the fact that she was not informed about this in EPSO's earlier reply to her e-mail of 29 November 2005, in which she asked whether an age limit applied to Open Competition EPSO/AD/35/05.

By e-mail of 4 October 2006, EPSO replied to the complainant's e-mail of 15 September 2006 and EPSO upheld its decision of 8 September 2006. In addition, EPSO informed the complainant that the Notice of Competition did not pose any restrictions on candidates under the age of retirement and that her e-mail of 29 November 2005, to which she referred, did not specify her age.

Finally, EPSO referred to the complainant's allegations and claim.

As regards the age limit, EPSO recalled that, on 10 April 2002, the former president of the Commission, Mr R. Prodi, decided to abolish the age limit requirement in Commission competitions as published from 11 April 2002 onwards. Subsequently, EPSO decided that no age limit should be foreseen in Notices of Competitions. However, even though the age limit to submit candidatures to become officials no longer exists, the Staff Regulations are applicable to the employment relationship between the officials and the institutions and Article 52 thereof stipulates the conditions relating to retirement. By recalling that Article in the Notice of Competition in question, EPSO drew the candidates' attention to the age of their retirement if they were to become officials.

As regards the complainant's contacts with the Commission prior to the submission of her candidature for the competition in question, EPSO stated that it was not responsible for them. As regards the complainant's contacts with EPSO, in particular her e-mail of 29 November 2005 addressed to it, EPSO stated that she had asked in that e-mail, inter alia, whether there was an age limit in the competition in question. In reply to that question, EPSO sent an e-mail on the same date, stating that there was no age limit. Given that, in her e-mail, the complainant referred neither to her date of birth nor to her age, EPSO was unable to check her personal data, at that stage. EPSO stated therefore that, although no age limit applied as regards participation in the competition in question, there was de facto an age limit, that is, an age higher to the one foreseen, in Article 52 of the Staff Regulations for retirement.

EPSO also pointed out that, had the complainant read the Notice of Competition attentively, she would have received the answer to her question concerning the age limit.

EPSO also stated that, following the preliminary checking of the complainant's e-registration and of the data contained in her e-registration form, EPSO found that the complainant fulfilled the general conditions of the competition.

In accordance with the Notice of Competition, however, the complainant could only submit her full application after she had successfully passed her admission tests and sat the written tests. Only at that time could the Selection Board have become cognisant of her date of birth by examining a copy of her passport, which she submitted together with her full application. At that point, it was revealed that the complainant was born on 11 January 1941, which meant that, when she submitted her candidature, she was 64 years and 11 months of age. Subsequently, at the moment when the reserve list could be drawn up, she had attained the age at which EU officials must retire.

EPSO concluded that, given the information provided in the Notice of Competition and the provisions of the Staff Regulations, EPSO could not accept the complainant's claim. EPSO went on to state that, in the future, when replying to candidates' questions relating to age in the context of competition/selection procedures, it would clearly stipulate the relevant provisions with respect to the retirement of EU officials.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Preliminary remarks

1.1 The European Ombudsman notes that the complainant's second allegation referred to her contacts with the European Commission, which she undertook with an eye to working in the European institutions and which were made prior to her contacts with the European Personnel Selection Office ("EPSO") in the context of Open Competition EPSO/AD/35/05. In this respect, EPSO stated in its opinion that it was not responsible for these contacts.

1.2 Given that the complainant stated clearly that her original complaint was directed against EPSO and concerned her participation in Open Competition EPSO/AD/35/05, the Ombudsman did not find it useful to refer the present case to the Commission. In the event that the complainant wishes the Ombudsman to do so, she could submit a new complaint against the Commission after having made prior administrative approaches to it.

2 The alleged failure to provide accurate information and alleged negligence

2.1 The complainant was 64 years and 11 months of age when she submitted her candidature for Open Competition EPSO/AD/35/05. After taking the admission and written tests, she was excluded by the Selection Board from the further stages of the competition, on the ground that her age disqualified her from being recruited.

The complainant alleged that EPSO had wrongly informed her that there was no age limit for Open Competition EPSO/AD/35/05 (first allegation).

In this context, she referred to the question she submitted to EPSO on 29 November 2005 concerning the age limit and to its reply of the same day.

The complainant also alleged that EPSO was negligent in failing, over a period of 16 months, to check her personal data which she submitted before and during the competition procedure (second allegation).

The complainant claimed that EPSO should admit her to the next stages of the Open Competition since it had allowed her to take part in the first and the second stages of the competition (claim).

2.2 EPSO stated, in summary, that it adequately replied to the complainant's question as regards the age limit in Open Competition EPSOAD/35/05, to the extent that age limits with respect to participation in EPSO competitions had been abolished by a decision of the President of the Commission. EPSO noted that the complainant's question of 29 November 2005 was general in nature, and did not refer to her age. Therefore, EPSO could not have assumed that her question was motivated by the fact that she was close to the age of retirement. Had this been the case, EPSO would, in its reply, have informed her of the applicable retirement regime. EPSO stated, however, that in the future it would clearly stipulate the relevant provisions relating to the retirement of EU officials, when answering candidates' questions relating to age in the context of competition/selection procedures.

EPSO also pointed out that (i) section E.7 of the Notice of Competition drew the candidates' attention to the retirement regime applicable to EU officials and that (ii) Article 52 of the Staff Regulations provides for automatic retirement, in principle, at the age of 65 years. Although there was no age limit with respect to participation in the Open Competition, there was de facto an age limit with respect to the recruitment of successful candidates. In light of points (i) and (ii) above, EPSO rejected the complainant's claim.

EPSO also stated that, in accordance with the Notice of Competition, it could check the complainant's personal data only after she had submitted her full application, that is, after she had successfully passed the admission tests and sat the written tests. Moreover, again in accordance with the Notice of Competition, when checking the complainant's e-registration form at the beginning of the competition, EPSO only had to check, on a preliminary basis, the general eligibility criteria as foreseen in the Notice of Competition.

2.3 At the outset, the Ombudsman points out that the complainant does not appear to challenge the Selection Board's decision to exclude her from the Open Competition because she had attained the retirement age applicable to EU officials. In the Ombudsman's understanding of the complaint, the complainant considered that if EPSO had (i) accurately replied to her question of 29 November 2005 concerning the age limit; and/or (ii) noted her age on the basis of the documents in its possession; and (iii) informed her of its consequences in the context of her participation in the competition in question, it would have prevented her from needlessly investing time and effort in preparing for the admission and written tests, all which the complainant considers EPSO has not done.

2.4 Further, the Ombudsman notes that, on 29 November 2005, (i) the complainant addressed EPSO by e-mail and put the following question to EPSO: "quelle est la limite d´âge pour le concours AD 35/05", (ii) to which EPSO replied by stating "pas de limite d´âge".

2.5 The Ombudsman agrees with EPSO that the complainant's question regarding the age limit was general in nature and that EPSO could not reasonably have understood it as referring to the complainant's age and/or to the compulsory retirement age established in the Staff Regulations for EU officials.

The Ombudsman considers therefore that, EPSO's reply, although formulated in a very concise manner, correctly reflected its rules, that there is no age limit for participating in competitions organised by EPSO.

The Ombudsman does not find therefore that EPSO's reply to the complainant's specific question of 29 November 2005 was evidently inaccurate. Moreover, the Ombudsman notes EPSO's statement in its opinion on the complaint that, in the future, it would clearly stipulate the relevant provisions relating to the retirement age of EU officials, when answering candidates' questions relating to age in the context of competition/selection procedures.

In light of the above, the Ombudsman does not find an instance of maladministration as regards the complainant's first allegation.

2.6 The Ombudsman notes, however, that, following the above exchange of e-mails, the complainant submitted her e-registration form. EPSO did not inform the Ombudsman in its opinion that the complainant's date of birth did not appear in that form.

The Ombudsman notes, therefore, that EPSO appeared to state, instead, that its checking of the registration form was preliminary and only concerned the eligibility conditions as stipulated in point A.II.3 of the Notice of Competition, that is, that

"a candidate must (i) be a citizen of one of the Member States of the European Union or, under the terms of Article 28(a) of the Staff Regulations, a citizen of one of the acceding countries (Bulgaria, Romania); (ii) have full rights as a citizen; (iii) have fulfilled any obligations imposed (...) by the laws on military service; (iv) meet the character requirements for the duties involved."

EPSO also pointed out that, according to the Notice of Competition, the definitive verification of the eligibility conditions and of all personal data submitted by the candidates was only made after the candidates had sat the admission and written tests.

2.7 In this regard, the Ombudsman notes that point 2 of Section D of the Notice of Competition ("How to apply") states that the candidates invited to the admission tests (and where applicable the written tests) will be those who are found to meet the general terms and conditions (see A.II.3) after EPSO has carried out a preliminary eligibility check based on the information given in the registration forms. (emphasis added).

The Ombudsman takes the view therefore that, when checking the information provided by the complainant in her registration form, EPSO appears to have acted in accordance with the Notice of Competition, by checking only whether the complainant fulfilled the general conditions as stipulated in section A.II.3 of the Notice of Competition.

Moreover, the Ombudsman points out that section E.7 of the Notice of Competition contained information on the retirement regime applicable to EU officials.

Therefore the Ombudsman does not find any instance of maladministration as regards the complainant's second allegation.

2.8 In light of his findings of no maladministration in points 2.5 and 2.7 above, the complainant's claim cannot be sustained.

3 Conclusion

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

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS