The background to the complaint

1. The present complaint concerns the rejection of the complainant's application for the position of Head of Unit for Information and Communications Technology at the European Medicines Agency ('EMA') (EMA/AD/322).

2. By letter dated 14 July 2011, EMA informed the complainant that his application did not meet the requirements of the vacancy notice concerning professional experience. Specifically, the vacancy notice required at least 15 years of professional experience after obtaining a degree giving access to that competition. EMA explained that the complainant obtained such a degree in 2006. The complainant's first degree, which did not meet the requirements of the vacancy notice, was awarded to him in 2001. This meant that the period between obtaining a degree giving access to the competition and the closing date of the competition was far less than 15 years.

3. By letter dated 21 July 2011, the complainant argued that he was not aware of the minimum professional experience requirement and pointed out that, in any event, the requirement of 15 years of professional experience infringes Directive 2000/78[1] in EU law and the Equality Act 2010 in English law.

4. In its reply of 31 August 2011, EMA confirmed that the complainant's application did not satisfy the requirements of the vacancy notice because he did not possess at least 15 years of professional experience. EMA forwarded to the complainant a copy of the vacancy notice and its letter dated 14 July 2011.

5. On 17 September 2011, the complainant lodged the present complaint with the Ombudsman.

The subject matter of the inquiry

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

Allegation:

By imposing a minimum requirement of 15 years' professional experience as a condition of eligibility for the position of Head of Unit for Information and Communications Technology, EMA indirectly discriminated on the grounds of age.

Claim:

EMA should take appropriate remedial action.

7. In the letter opening his inquiry, the Ombudsman noted that, in its letters dated 14 July and 31 August 2011, EMA provided a clear and sufficiently detailed reply concerning the reasons for which it considered that the complainant did not satisfy the minimum professional experience requirements set out in the vacancy notice. However, EMA did not specifically address the allegation of indirect discrimination on the grounds of age. In particular, EMA did not address the question of whether the requirement of 15 years of professional experience for the post in question was objectively justified.

The inquiry

8. On 29 September 2011, the Ombudsman asked EMA to submit an opinion on the complainant's allegation and claim.

9. On 15 December 2011, EMA sent its opinion, which was forwarded to the complainant for observations. The complainant submitted his observations on 27 December 2011.

The Ombudsman's analysis and conclusions

Preliminary remark

10. In its opinion, EMA argued that, in his correspondence to it, the complainant complained about the requirement of 15 years' professional experience for the post. EMA stated that indirect discrimination on the basis of age is therefore a new allegation.

11. In his observations, the complainant argued that he had raised the issue of age discrimination in his correspondence with EMA. In support of this argument, the complainant referred to his e-mail to EMA dated 14 July 2011 in which he had informed it that "I will consult my lawyer if that is a discrimination based on the candidate's age...".

12. The Ombudsman does not view EMA's argument as an objection to the inclusion of the issue of age discrimination in his inquiry. In any event, it should be noted that, in his letter dated 21 July 2011, the complainant argued that the professional experience required for the post infringed Directive 2000/78 in EU law and the Equality Act 2010 in English law. Given that the above Directive governs equality of treatment in employment and occupation and deals with, among other things, discrimination based on age, the complainant's reference to it may reasonably be understood as questioning the compliance of the relevant requirement with the principle of non-discrimination on the basis of age. It follows that the complainant drew EMA's attention to the nature of his grievance and thus enabled it to respond accordingly before turning to the Ombudsman.

13. Given that they are logically and factually connected, the complainant's allegation and claim will be assessed together.

A. Allegation of indirect discrimination on grounds of age and related claim

Arguments presented to the Ombudsman

14. In his complaint, the complainant argued that the minimum professional experience requirement results in indirect discrimination on the grounds of age because, in the circumstances of the present case, only an applicant who is aged 35 or above could satisfy that requirement. At the same time, the requirement in question does not ensure a high level of professional competence because that could be achieved through the use of assessment tools which comply with the principle of proportionality.

15. In its opinion, EMA rejected the allegation of age discrimination. It argued that the level of the position advertised required the successful candidate to have relevant professional experience. It explained that the position of a Head of Unit is a senior management function at the Agency and that a Head of Unit directly reports to the Agency's Executive Director. The entry level recruitment grade at EMA is AD12 for Heads of Unit, which is a senior grade level. Thus, such a position requires considerable professional experience in the field and 15 years' professional experience after obtaining the relevant degree reflects a level of expertise which is essential for a Head of Unit in accordance with the Staff Regulations and EMA's internal rules.

The Ombudsman's assessment

16. The Ombudsman begins his analysis by noting that the Court of Justice has ruled that the principle of non-discrimination constitutes a "particular expression of the general principle of equality … which forms part of the foundations of the Community"[2]. The foundational character of the principle is proven by the inclusion of a prohibition in Article 21(1) of the Charter of Fundamental Rights of the European Union, which states: "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.[3]" In parallel, Article 19(1) of the Treaty on the Functioning of the European Union entrusts the legislative institutions of the Union with the authority to "take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

17. In principle, the minimum professional experience requirement of 15 years for the post of Head of Unit at EMA set out in the vacancy notice is capable of constituting discrimination on the grounds of age. This is because, as the complainant argued, only an applicant who is aged 35 or above could satisfy that requirement. However, differences of treatment on the grounds of age may be objectively and reasonably justified by a legitimate aim if the means of achieving that aim are appropriate and necessary. Mindful of these considerations, the Ombudsman, in his letter opening the inquiry, asked EMA to address the question whether the requirement of 15 years' professional experience for the post in question was objectively justified.

18. In examining whether the grounds put forward by EMA in its opinion provide an objective justification for the requirement of professional experience of 15 years for the post of Head of Unit, the Ombudsman draws inspiration from Directive 2000/78[4] which provides useful guidance concerning the interpretation of the principle of non-discrimination on the grounds of age.[5] It should be pointed out that, according to the Court of Justice's case-law, Directive 2000/78 codified the prohibition of all discrimination on grounds of age, both as a general principle of Union law and as a fundamental right enshrined in Article 21 of the Charter[6].

19. In this regard, Article 6(1) of Directive 2000/78 provides that differences of treatment on the grounds of age, such as the fixing of minimum professional experience requirements, shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives. In accordance with Article 6(1), the means of achieving that aim must be appropriate and necessary. It follows that, subject to these conditions, the appointing authority, acting within the scope of the Staff Regulations, is not precluded from setting minimum professional experience requirements.

20. Against this backdrop, it should be recalled that, in its opinion, EMA stated that Article 5(3) of the Staff Regulations ('SR') in conjunction with Article 1(d) of Annex III thereof entrust the appointing authority with the task of determining the degree of professional experience required in each competition. In vacancy notice EMA/AD/322, EMA set the minimum professional experience required at 15 years, in accordance with the SR and EMA's General implementing provisions on the procedure governing the engagement and the use of temporary agents at the EMEA concerning temporary agents at grade AD12[7].

21. In order to determine whether the minimum professional requirement for the position of Head of Unit for Information and Communications Technology can be objectively justified, the Ombudsman must examine whether the requirement's compliance with (a) the relevant applicable rules and (b) the principle of proportionality is ensured.

22. As regards (a), it is necessary to examine whether the minimum professional requirement of 15 years for the position of the Head of Unit in vacancy notice EMA/AD/322 is in conformity with both the SR and EMA's internal rules. To begin with the latter's internal rules, the Ombudsman notes that the rules in question contain detailed rules on the employment of temporary agents[8] and establish the possibility to engage temporary agents at grades from AD9 to AD12 (Article 5(2)(a) of EMA's internal Rules[9]). When doing so, minimum professional experience of 15 years constitutes an eligibility condition for appointment at grades AD11/12[10]. It follows that in setting the said requirement, EMA complied with its own rules. On a more general level, regard should be had to Article 10 of the Conditions of Employment of Other Servants of the Communities ('CEOS') which provide that Articles 1d, 1e, 5(1), (2), (3) and (4), and Article 7 SR shall apply by analogy. Having been invoked by EMA, Article 5(3) SR, which sets out the requirements for appointment to different function groups, is of relevance to the present case. This provision mentions professional experience only in relation to function group AST. It should be pointed out, however, that Article 5(3) only lays down the minimum conditions of employment and thus does not stand in the way of requiring professional experience wherever the interest of the service so requires. In the Ombudsman's view, EMA's position that the interest of the service makes it necessary for candidates interested in AD 12 positions to have at least 15 years of professional experience does not appear unreasonable.

23. As regards (b), the Ombudsman considers that the good and orderly functioning of the EU institutions, bodies, offices or agencies is a precondition for the promotion of an administrative culture of service. In order to achieve this objective, EU institutions must be in a position to secure the recruitment of staff of the highest standard of ability, efficiency and integrity, as recognised by the Staff Regulations. This constitutes a legitimate aim which EU institutions must pursue at all times, most notably in the present case, at the recruitment stage. In doing so, however, EU institutions must have due regard to the principle of proportionality, that is, to ensure that any conditions in respect of recruitment are suitable for the attainment of the aim in question and do not go beyond what is necessary to achieve it. In the case at hand, EMA explained that a Head of Unit occupies a senior role within EMA's institutional structure, reporting directly to the Executive Director, and performs senior management functions. EMA reasoned that a post of such seniority requires considerable professional experience and that professional experience of 15 years, as confirmed by the recruitment grade which was set at AD12, corresponds to the required level of expertise. The Ombudsman considers that EMA presented reasonable arguments in support of its position that the requirement of 15 years' professional experience for this senior post within its institutional structure is proportionate.

24. Considering the above, the Ombudsman concludes that the minimum professional requirement of 15 years for the position of the Head of Unit in vacancy notice EMA/AD/322 is objectively justified and does not constitute an instance of indirect discrimination on the grounds of age.

25. In light of the above considerations, there was no maladministration on the part of EMA in relation to the complainant's allegation. Given that the complainant's allegation cannot be upheld, his claim cannot be sustained either.

C. Conclusion

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

There was no maladministration on EMA's part in relation to the complainant's allegation.

The complainant and EMA will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 26 June 2012

 

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[1] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.

[2] Case C-17/05 Cadman [2006] ECR I-9583, paragraph 28. The phrase is used, with minor variations, throughout the Court’s case-law, starting with Joined Cases 117/76 and 16/77 Ruckdeschel [1977] ECR 1753, paragraph 7.

[3] It should be noted that Article 1(d)(1) of the Staff Regulations is similarly worded.

[4] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.

[5] Case C-388/07 Age Concern England [2009] ECR I-1569.

[6] Joined Cases C-297/10 and C-298/10 Hennigs, judgment of 8 September 2011, not yet reported in the European Court Reports. See also, Case C-555/07 Kücükdeveci [2010] ECR I-365, paragraph 21.

[7] Article 5(3) of the General implementing provisions on the procedure governing the engagement and the use of temporary agents at the EMEA.

[8] Recital 1 of the preamble of the General implementing provisions on the procedure governing the engagement and the use of temporary agents at the EMEA.

[9] Article 5(2)(a) of the General implementing provisions on the procedure governing the engagement and the use of temporary agents at the EMEA.

[10] Article 5(3) of the General Implementing provisions on the procedure governing the engagement and the use of temporary agents at the EMEA.