Strasbourg, 14 November 2007

Dear Mr X,

On 22 July 2005, MEP A. forwarded to the European Ombudsman your complaint against the European Commission, concerning the Commission's decision not to retain your application for a position as a Seconded National Expert (SNE) in the Commission's DG for Translation.

On 30 August 2005, I forwarded your complaint to the President of the Commission. The Commission sent its opinion on 25 October 2005. I forwarded it to you with an invitation to make observations, which you sent on 16 December 2005.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay in the handling of your case.

THE COMPLAINT

In June 2005, the complainant applied for a position as a Seconded National Expert in the Commission's DG for Translation. On 27 June 2005, the complainant received from the Commission a letter, dated 16 June 2005, informing him that, "after careful examination of both the educational background and the professional experience of all candidates", the Commission had not been retained his application.

On the same day, the complainant sent an e-mail to the Commission, asking how the selection process had been carried out, since he had only sent an on-line application and had never been tested or interviewed. He also stated that he needed to be convinced that the other candidates were better qualified and that the selection process had been carried out in the right manner.

On 11 July 2005 the complainant received a letter from the Commission, dated 4 July, referring to his e-mail of 27 June 2005. In this letter, the Commission stated that "[t]he selection ... was based on a relative comparison of the candidates' merits and particularly their linguistic profile", and that "[i]n spite of [the complainant's] impressive CV, the selected candidates had profiles that corresponded better to the needs of the DGT". The Commission also informed the complainant that a new call for seconded national experts would most probably be published during autumn 2005 and encouraged him to apply again.

On 22 July 2005, the complainant sent an e-mail to MEP A., regarding this matter. In this e-mail, the complainant referred to his above correspondence with the Commission and posed the following questions:

How can a person's application not be retained without this person being tested or interviewed?

If I am not up to the scratch now, why was I encouraged to apply again in autumn?

How were the educational background and professional experience measured?

How was the relative comparison of candidates' merits and linguistic profiles carried out?

The complainant pointed out that, as a citizen of the European Union, he had a right to a full explanation, which would lay his mind to rest regarding the fairness of the selection procedure, and asked Mr A. to investigate the matter on his behalf.

On 22 July 2005, MEP A. forwarded the complainant's e-mail to the Ombudsman. On 30 August 2005, the Ombudsman opened an inquiry into this matter, and, more specifically, into the following allegations made, in essence, in the complainant's above-mentioned complaint of 22 July 2005:

(1) the Commission failed to reply adequately to the complainant's request for sufficient information on the way the evaluation and the selection of candidates had been made;

(2) the Commission failed to provide the complainant with a sufficiently elaborated, individualised reasoning for its decision not to retain his application.

THE INQUIRY

The Commission's opinion

In its opinion of 25 October 2005, the Commission, first, referred to the relevant call for expressions of interest. Moreover, it emphasised that an analysis of the complainant's CV did not confirm that he possessed the required experience in the field of translation or terminology. As a result of this, the Commission decided not to retain his application.

The Commission went on to reply to the four questions posed by the complainant in his above-mentioned complaint of 22 July 2005. In this part of its opinion, the Commission stated the following:

(a) The standard procedure is to select the applicants on the basis of their file as submitted (i.e., the CV).

(b) It was anticipated that the next call for expressions of interest would seek a broader range of experience beyond that of translation and/or terminology. In the new call for an expression of interest issued on 9 September 2005, these criteria had been taken out. Furthermore, the complainant's CV would then be compared to another sample of candidates. Hence, it was not contradictory to encourage the complainant to apply again.

(c) The educational background and professional experience were measured on the basis of the statements in the CVs. Two of the criteria in the call for expression of interest were "being a translator/reviser and having at least three years experience in translation/revision." Nowhere in the complainant's CV was it indicated that the complainant had such experience.

(d) The relative comparison between candidates was carried out on the basis of the statements in the CVs, taking into account the requirements indicated in the job description.

As regards the Ombudsman's inquiry and the allegations identified in the Ombudsman's opening letter of 30 August 2005, the Commission made the following comments. With respect to the first allegation (failure to reply adequately to the complainant's request for sufficient information on the way the evaluation and the selection of candidates had been made), the Commission's reply (of 4 July 2005) gave a accurate account of the selection procedure: that it was based on a relative comparison of the candidates' merits. The Commission acknowledged that this reply could have been more specific and could have contained further information. However, the Commission had to safeguard confidentiality as regards the other candidates. Therefore, information such as to convince the complainant that the other candidates had better qualifications, implying a comparison with other candidates and disclosure of information about their files, could not be provided.

With respect to the second allegation (failure to provide the complainant with a sufficiently elaborated, individualised reasoning for its decision not to retain his application), the Commission's reply (of 4 July 2005) outlined the reasons for its contested decision, namely, that the selected candidates had profiles that corresponded better to the needs of the Commission. This reply did not explicitly state that the complainant did not fulfil the qualifications in the call for expressions of interest. For clarity's sake and to avoid any possible misunderstandings, the Commission acknowledged that this could have been mentioned.

In conclusion, the Commission made the following remarks. The Commission applies a procedure for the screening of CVs as an appropriate and cost efficient manner of selecting or shortlisting candidates for SNE posts. The selection procedure at issue was carried out according to the applicable Commission procedures. The CVs were screened by senior officials directly concerned with the SNE selection, namely, the Director responsible for the new languages and the head of the Maltese language department. With respect to the content and style of rejection letters in any of its recruitment procedures, DGT will examine how to provide applicants who ask for it with more detailed information and give further clarification, so as to avoid misunderstandings in the future.

The complainant's observations

On 16 December 2005, the complainant sent his observations on the Commission's opinion to the Ombudsman. The complainant stated that he knows for a fact that there were no translators/revisers in Malta, and, even more so, with 3 years of experience. It is only recently that courses leading to posts of translators have been organised. Moreover, the Commission apparently did not take into consideration that he has excellent reading and writing skills in Maltese, English and Italian, backed by certificates. In addition, he posed the question "how come an important organisation like the European Commissions just accepts CVs at face and does not test/interview applicants?" Finally, the complainant pointed out that this lack of transparency in the way prospective employees are chosen leaves a lot to be desired.

THE DECISION

1 Preliminary remarks

1.1 In his complaint of 22 July 2005, the complainant posed, inter alia, the following question: "How can a person's application not be retained without this person being tested or interviewed?" Relatedly, the Commission stated in its opinion that (i) the complainant's application was not retained because his CV did not show that he possessed the requisite experience in the field of translation or terminology; (ii) the standard procedure is to select SNEs on the basis of the file the applicants have submitted; (iii) the procedure for the screening of CVs is an appropriate and cost efficient manner of selecting or shortlisting candidates for SNE posts; (iv) the selection procedure at issue was carried out according to the applicable Commission procedures; the CVs were screened by senior officials directly concerned with the SNE selection, namely, the Director responsible for the new languages and the head of the Maltese language department.

In his observations on the Commission's opinion, the complainant formulated the following question: "How come an important organisation like the European Commission just accepts CVs at face and does not test/interview applicants?". Relatedly, he expressed the view that the selection practice referred to in this question is not sufficiently transparent. Hence, it seems that the complainant argued against the propriety of this practice. The specific matter raised by the complainant is outside the scope of the Ombudsman's inquiry into the present complaint, as defined in his opening letter of 30 August 2005. Moreover, the complainant's argument does not appear to have been preceded by appropriate administrative approaches to the Commission, as required by article 2(4) of the Statute of the European Ombudsman. Under these circumstances, the Ombudsman will not address the above matter in his present decision.

1.2 Moreover, the complainant argued for the first time in his observations that (a) he knows for a fact that there were no translators/revisers in Malta, and, even more so, with 3 years of experience; and (b) it is only recently that courses leading to posts of translators have been organised. It is not clear whether this argument is meant to imply that the relevant requirements laid down in the call for expressions of interest here concerned were unreasonable and/or that the Commission presumably selected applicants who did not meet the above requirements, in violation of the call for expressions of interest. Besides, such an argument would not fall within the scope of the Ombudsman's inquiry into the present complaint, as defined in his opening letter of 30 August 2005. Moreover, the complainant's argument does not appear to have been preceded by appropriate administrative approaches to the Commission, as required by article 2(4) of the Statute of the European Ombudsman. Under these circumstances, the Ombudsman will not address, in his present decision, the above matter.

2 Allegation that the Commission failed to reply adequately to the complainant's request for information on the selection procedure

2.1 In June 2005, the complainant applied for a position as Seconded National Expert (SNE) in the Commission's DG for Translation. On 27 June 2005, the complainant received from the Commission a letter, dated 16 June 2005, informing him that, "after careful examination of both the educational background and the professional experience of all candidates", the Commission had not retained his application.

In his e-mail of 27 June 2005 to the Commission, the complainant asked "how the selection was carried out?", noting that he had, as requested, only sent an on-line application to the Commission. In its reply of 4 July 2005, the Commission simply stated, in this regard, that "[t]he selection ... was based on a relative comparison of the candidates' merits and particularly their linguistic profile". In his complaint of 22 July 2005, the complainant indicated that he was not satisfied with the information he had received, and posed the following relevant questions: "How were the educational background and professional experience measured? How was the relative comparison of candidates' merits and linguistic profiles carried out?"

2.2 Principles of good administration, embodied in Articles 22 and 12(1) of the European Code of Good Administrative Behaviour(1) and in Sections 2 and 4 of the European Commission's Code of Good Administrative Behaviour(2) require that the Commission reply adequately to information requests made by citizens and provide them with the information they have requested, unless it invokes valid and adequate grounds for not doing so.

2.3 In the present case, the complainant's question, contained in his e-mail of 27 June 2005 to the Commission and asking for information on "how the selection [of SNEs for the position he had applied for] was carried out", was formulated in general terms, and did not refer to specific procedural or substantive aspects of the selection at issue. The Commission did not ask the complainant to specify or clarify his request. Further, it replied to this query by merely stating that "[t]he selection ... was based on a relative comparison of the candidates' merits and particularly their linguistic profile". The complainant was, thus, justified in expressing, in his complaint to the Ombudsman, his dissatisfaction with the above reply.

In the context of the present inquiry, the Commission (a) acknowledged that this reply could have been more specific and could have contained further information; and (b) provided such further information on the selection procedure, by answering the relevant specific questions formulated in the complaint to the Ombudsman(3). In his observations, the complainant did not contest the adequacy of this additional information given in the Commission's opinion(4). In light of the above, it appears that the Commission has taken adequate steps in response to this part of the complaint. The Ombudsman, thus, considers that no further inquiry into and consideration of this part of the case are justified.

3 Allegation that the Commission failed to provide the complainant with a sufficiently elaborated, individualised reasoning for its decision not to retain his application

3.1 On 27 June 2005, the complainant received a letter from the Commission, dated 16 June 2005, informing him that, "after careful examination of both the educational background and the professional experience of all candidates", it had not retained his application for a position as a Seconded National Expert in the Commission's DG for Translation. On the same day, the complainant sent an e-mail to the Commission stating that he needed to be convinced that the other candidates were better qualified and that the selection process had been carried out in the right manner. On 11 July 2005, the complainant received a letter from the Commission, dated 4 July and referring to his e-mail of 27 June 2005. In this letter, the Commission stated that "[t]he selection ... was based on a relative comparison of the candidates' merits and particularly their linguistic profile", and that "[i]n spite of [the complainant's] impressive CV, the selected candidates had profiles that corresponded better to the needs of the DGT". In his complaint of 22 July 2005, the complainant alleged, in essence, that the Commission had failed to provide him with a sufficiently elaborate, individual reasoning for its decision not to retain his application.

3.2 The Ombudsman, first notes that, according to settled case law, the statement of reasons required by Article 253 (ex-article 190) of the EC Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning used by the institution when adopting the measure in question. This should be done in such a way as to enable the persons concerned to ascertain the reasons for the measure and to facilitate its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations(5).

As regards the duty to state grounds, Article 18 of the European Code of Good Administrative Behaviour provides:

"1. Every decision of the Institution which may adversely affect the rights or interests of a private person shall state the grounds on which it is based by indicating clearly the relevant facts and the legal basis of the decision.

2. The official shall avoid making decisions which are based on brief or vague grounds or which do not contain individual reasoning.

3. If it is not possible, because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of the decision and where standard replies are therefore made, the official shall guarantee that he subsequently provides the citizen who expressly requests it with an individual reasoning.

Moreover, Section 3 of the European's Commission's Code of Good Administrative Behaviour provides:

"A Commission decision should clearly state the reasons on which it is based and should be communicated to the persons and parties concerned.

As a general rule, full justifications for decisions should be given. However, where it may not be possible, for example because of the large number of persons concerned by similar decisions, to communicate in detail the grounds of individual decisions, standard replies may be given. These standard replies should include the principal reasons justifying the decision taken. Furthermore, an interested party who expressly requests a detailed justification shall be provided with it."

3.3 The Ombudsman remarks that essential principles of good administration in recruitment procedures like the one here concerned, which are based on the examination of the candidates' CVs, require that the eligibility requirements laid down in the relevant call for expressions of interest (or similar document) be properly examined, before a comparative evaluation of the candidates' qualifications and merits is carried out. A decision to exclude a candidate on the ground that he or she does not meet one or more of the eligibility conditions set out in the call should state, in a clear and unequivocal fashion, this reason for the exclusion as well as the conditions the candidate did not fulfil. If the selection procedure involves a large number of candidates, the institution may initially confine itself to stating the reasons for the refusal in a summary manner and informing the candidates only of the criteria and the result of the selection. Nevertheless, the institution must subsequently give an individualised, adequate explanation to those candidates who ask for it(6). It goes without saying that the reasons stated must be accurate.

3.4 In the present case, the complainant's e-mail to the Commission of 27 June 2005 stated that he needed to be convinced that the other candidates were better qualified and that the selection process had been carried out in the right manner. Thus, the complainant requested, in essence, a sufficiently elaborated, individualised reasoning for the Commission's decision not to retain his application. In its reply of 4 July 2005, the Commission merely stated that "[t]he selection ... was based on a relative comparison of the candidates' merits and particularly their linguistic profile", and that "[i]n spite of [the complainant's] impressive CV, the selected candidates had profiles that corresponded better to the needs of the DGT". This statement cannot, manifestly, be considered as amounting to a sufficiently detailed, individualised explanation for the Commission's decision not to retain his application. The complainant was, thus, justified in alleging, in his complaint to the Ombudsman, that the Commission had failed to provide him with adequate reasons for this decision.

3.5 In its opinion on the complaint, the Commission stated, inter alia, that it had to safeguard, vis-à-vis the complainant, confidentiality as regards the other candidates. Therefore, it held the view that information such as to convince the complainant that the other candidates had better qualifications, implying a comparison with other candidates and disclosure of information about their files, could not be provided. This argument was made with a view to justifying the way it had replied to the complainant on 4 July 2005. However, the Commission did not provide adequate explanations in support of this "confidentiality" argument, including the pertinent legal basis. Moreover, the Commission did not seem to have examined whether information about the qualifications of the selected candidates could be provided in a way which would not (or would not be likely to) disclose the identity of these candidates, and, hence, would not implicate the "confidentiality" principle referred to in its opinion.

3.6 In its opinion on the complaint to the Ombudsman, the Commission also pointed out that an analysis of the complainant's CV did not confirm that he possessed the required experience in the field of translation or terminology and, therefore, the Commission did not retain his application. However, the Commission's letter of 4 July 2005 outlining the reasons for its decision not to retain the complainant's application mentioned that the selected candidates had profiles that corresponded better to the needs of the Commission. This reply did not explicitly state that the complainant did not fulfil the qualifications in the call for expressions of interest. For clarity's sake and to avoid any possible misunderstandings, the Commission acknowledged that this could have been mentioned.

The Ombudsman notes that the content of the Commission's letter of 4 July 2005 reasonably suggested that the complainant met the minimum requirements laid down in the relevant call for expression of interest, but was not selected because the qualifications of other applicants corresponded better with the needs of the DGT. The Ombudsman, thus, considers that, in its letter of 4 July 2005, the Commission failed to communicate to the complainant, in a clear and sufficiently accurate and precise way, the reason why his application had not been retained.

3.7 In light of the above, the Ombudsman finds that, in its letter of 4 July 2005, the Commission failed to properly discharge its duty to state grounds. This was an instance of maladministration. Taking into account his remarks in point 3.8 of the present decision, the Ombudsman will make a relevant critical remark.

3.8 In his observations on the Commission's opinion, the complainant did not allege that he possessed the qualifications required by the call for expression of interest and did not contest the adequacy of the aforesaid basis (see point 3.6) for the Commission's decision not to retain his application(7). In view of the above, and since in the context of the present inquiry, the Commission took adequate steps to respond to the complainant's concerns, the Ombudsman does not consider it justified to further pursue the complainant's allegation.

4 Conclusion

On the basis of his inquiry into this complaint, the Ombudsman finds it necessary to make the following critical remark.

Essential principles of good administration in recruitment procedure like the one here concerned, which was based on the examination of the candidates' CVs, require that the eligibility requirements laid down in the relevant call for expressions of interest (or similar document) be properly examined, before a comparative evaluation of the candidates' qualifications and merits is carried out.A decision to exclude a candidate on the ground that he or she does not meet one or more of the eligibility conditions set out in the call should state, in a clear and unequivocal fashion, the reason for the exclusion as well as the conditions the candidate did not fulfil. If the selection procedure involves a large number of candidates, the institution may initially confine itself to stating the reasons for the refusal in a summary manner and informing the candidates only of the criteria and the result of the selection. Nevertheless, the institution must subsequently give an individualised, adequate explanation to those candidates who ask for it. It goes without saying that the reasons stated must be accurate.

In its reply of 4 July 2005 to the complainant's e-mail of 27 June 2005, the Commission failed to provide him with clear, sufficiently accurate, precise and adequate reasons why his application had not been retained. The Commission, thus, failed to properly discharge its duty to state grounds. This was an instance of maladministration.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Article 22 of the Code provides, inter alia: "1. The official shall ... provide members of the public with the information that they request. ... The official shall take care that the information communicated is clear and understandable. ... 3. If, because of its confidentiality, an official may not disclose the information requested, he or she shall, in accordance with Article 18 of this Code, indicate to the person concerned the reasons why he cannot communicate the information."

Article 12(1) of the Code provides: "The official shall be service-minded, correct courteous and accessible in relations with the public. When answering correspondence, ... the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked."

(2) OJ 2000 L 308, p. 32. Section 2 of this Code provides, inter alia: "Where a member of the public requires information relating to a Commission administrative procedure, staff will ensure that this information is provided within the deadline fixed for the procedure in question." Section 4 provides: " The Commission undertakes to answer enquiries in the most appropriate manner and as quickly as possible."

(3) These questions are mentioned in point 2.1 of the present decision. In reply, the Commission stated that the educational background and professional experience had been measured on the basis of the statements contained in the CVs and that the relative comparison between candidates had been carried out on the basis of the statements in the CVs, taking into account the requirements indicated in the job description.

(4) The complainant rather questioned the propriety of the Commission's practice referred to in the relevant part of its opinion (see also point 1.1 of the present decision).

(5) See, e.g., Case C-266/05 P Sison v. Council (not yet reported in the ECR), paragraph 80, citing Case C-367/95 P Commission v. Sytraval and Brink's France [1998] ECR I-1719, paragraph 63.

(6) Cf. Case T-55/91 Fascilla v. Parliament [1992] ECR II-1757, paragraphs 32, 33, 35; Case 225/87 Belardinelli v. Court of Justice [1989] 2353, paragraph 7.

(7) Rather, he appeared to argue that the relevant requirements were unreasonable and/or that the Commission presumably selected applicants who did not meet these requirements (see point 1.2 of the present decision).