The background to the complaint

1. The present complaint concerns a recruitment procedure organised by the European Research Council Executive Agency ('ERCEA'). In May 2010, ERCEA launched a Call for expressions of interest with a view to establishing a reserve list for contract agents for Project Advisers in Function Group IV[1] ('ERCEA Call'). The complainant submitted an application.

2. Before responding to the above-mentioned ERCEA Call, the complainant had already been successful in two "CAST RELEX" selection procedures for contract agents, organised by EPSO in 2007 and 2008. In selection procedure EPSO/CAST/EU/27/07 ('CAST RELEX 2007 Call'), the complainant applied for the RELEX profile of "Operational Adviser - Adviser - Op. Sect. - Social and Cultural Issues" in Function Group IV[2]. Her name was consequently included in the respective database for contract agents in Function Group IV. The complainant was also successful in selection procedure EPSO/CAST/RELEX/3/08 ('CAST RELEX 2008 Call') for contract agents in Function Group III[3].

3. The ERCEA Call laid down the following eligibility requirements for candidates:

"3. Eligibility

By the closing date of this call candidates must: ...

3.2 Specific conditions

Be included in the European Personnel Selection Office (EPSO) database for contract agents in the function group referred to under point 2."

Point 2 of the ERCEA Call referred to "FGIV", i.e. Function Group IV.

4. On 6 July 2010, ERCEA informed the complainant that her application did not meet the eligibility criteria because her name was included in the CAST RELEX database and not in the CAST database. ECREA specified that the "executive agencies do not have access to the CAST RELEX database and are only allowed to recruit candidates from the normal CAST database".

5. On the same day, the complainant informed ERCEA that she had been successful in the CAST RELEX 2007 Call, and that her name was indeed included in the CAST RELEX database. She added, however, that the ERCEA vacancy notice did not specify that candidates whose names had been included in the CAST RELEX database would not be eligible.

6. On 9 July 2010, ERCEA clarified that, in an administrative note adopted in November 2009, the European Commission's Directorate-General for Human Resources had informed the executive agencies that they could not recruit candidates included in the RELEX databases for contract agents.

7. The complainant considered that she was wrongly excluded from this competition and turned to the Ombudsman.

The subject matter of the inquiry

8. In her complaint, the complainant put forward the following allegation and claims:

Allegation:

ERCEA wrongly excluded the complainant's application, on the basis of a selection criterion which was added a posteriori.

Claims:

(1) The complainant's application should be taken into account.

(2) ERCEA should not add selection criteria a posteriori and should clearly state all selection criteria in its vacancy notices.

The inquiry

9. The complainant submitted her complaint on 24 August 2010. On 21 September 2010, the Ombudsman opened the present inquiry and invited the Commission to submit an opinion[4].

10. The Commission sent its opinion on 23 November 2010, and a French translation of it on 30 November. The Ombudsman forwarded the Commission's opinion to the complainant and invited her to submit observations by 31 January 2011.

11. The complainant provided observations on 18 January 2011 and 22 February 2011.

12. On 20 July 2011, the Ombudsman asked the Commission to reply to two questions.

13. The Commission provided its reply on 4 November 2011, which was then forwarded to the complainant. On 22 November 2011, the complainant submitted her observations on the Commission's reply.

14. On 13 December 2011, the Commission sent a letter to the Ombudsman which concerned the present complaint and two other pending inquiries regarding "access of EU agencies to the CAST RELEX reserve lists". The Commission's letter was also forwarded to the complainant for observations. The complainant submitted her observations on 29 February 2012.

The Ombudsman's analysis and conclusions

A. As regards the complainant's allegation and related claims

Arguments presented to the Ombudsman

15. In reply to the above-mentioned allegation and claims, the Commission noted that the ERCEA procedures for the selection of contract agents are found in the vacancy notice published by ERCEA.

16. It explained that EPSO carries out the pre-selection of contract agents on behalf of the Commission and in compliance with the requirements laid down in the published call for expressions of interest. Thus, EPSO registers the names of the successful candidates in the database of the Call for which they applied.

17. In the present case, the selection of the complainant and her subsequent registration in the CAST RELEX database was carried out by EPSO on the basis of the vacancy notice of the CAST RELEX 2007 Call. This Call included various profiles for all institutions, and specified that the Commission was seeking to fill advisory, technical and administrative positions in its Delegations to third countries and to International Organisations. Those posts were labelled 'RELEX' in relation to each 'Delegation' profile. Thus, the said Call contained two fields: a general one, available for all institutions; and a specific one, available only for the EU Delegations.

18. The Commission considered that the ERCEA Call required candidates to be registered in "qualified databases for agencies", i.e., the ones to which the Commission had given ERCEA access. The complainant, however, was registered in the CAST RELEX database. The Commission specified that executive agencies did not have access to the CAST RELEX database. Therefore, ECREA could not have consulted the RELEX database and could not have recruited candidates from it.

19. As stated in the notice of the CAST RELEX 2007 Call, the aim of the 'RELEX profiles' was to select candidates for the Commission's Delegations to third countries and to International Organisations. The very wording of the Call required that: (i) candidates be willing to accept a posting in a Delegation in a country classified as difficult or very difficult; (ii) successful candidates select a number of countries/places where they would be willing to work; and (iii) a security clearance procedure be carried out by the security authority of the country of the selected candidate's nationality.

20. According to the Commission, all the candidates of the said CAST RELEX 2007 Call were aware - at the time they submitted their application - that the Call was aimed at selecting contract agents for the Delegations. Furthermore, in a letter sent to the complainant on 25 October 2007, EPSO had clearly informed her that access to the database with the names of the successful candidates with RELEX profiles would be given to DG RELEX, which would then select and invite candidates for an interview.

21. Accordingly, ERCEA could select candidates only from the CAST database, not from the CAST RELEX database.

22. Thus, contrary to the complainant's allegation, the non-eligibility of CAST RELEX candidates was not a new criterion added a posteriori by ERCEA.

23. The Commission further pointed out that the complainant's non-eligibility resulted from the ERCEA Call, which had clearly stated the relevant criteria for selection.

24. In her observations, the complainant noted that the ERCEA vacancy notice simply stated that the candidates had to be "included in the EPSO database for contract agents in the function group referred to under point 2". Therefore, the complainant failed to understand how the Commission arrived at the conclusion that "the vacancy notice required registration in qualified databases for agencies."

25. The complainant stated that she was fully aware that the CAST RELEX 2007 Call was meant to be used to select contract agents for the Delegations. However, she knew that many successful candidates from various contract agents' list had been recruited by institutions other than from those for which a competition had been organised. Thus, in the absence of any information in the notice about the kinds of eligible databases, she was entitled to consider herself eligible for the vacancy in question.

26. The complainant observed that, in the absence of any clear rules, the institutions followed a recruitment practice based on unwritten exceptions and derogations. She knew that a member of a unit dealing with human resources in one of the Commission's Directorates-General regularly called successful candidates on CAST RELEX lists and recruited personnel from those lists on the basis of a simple request or derogation.

27. The complainant also indicated that there was a note produced by the Commission's Directorate-General for Human Resources from November 2009[5], which concerned the recruitment by EU agencies of candidates from the CAST RELEX lists. Her request for access to that note was however rejected by the Commission[6].

28. The complainant also referred to a vacancy notice published shortly before by another agency which stated: "Candidates included in the EPSO database for contract agents RELEX and for CAST 2010 are not considered eligible for our calls for expressions of interest". In the absence of such a clear statement in the ERCEA Call, the complainant considered that her application could not be rejected on the grounds that she was not eligible because she was included only in the CAST RELEX database. She maintained that the ERCEA competition notice did not specify that candidates from the CAST RELEX 2007 Call could not apply.

29. The complainant stated that she would no longer accept a solution whereby her application would be considered eligible by ERCEA, since she was convinced that it would not be treated in a fair and transparent manner.

30. After having analysed the submissions by the parties, the Ombudsman decided that further inquiries into this case were needed. He thus asked the Commission to reply to the following two questions:

(1) In the framework of selection procedures of contract agents (CAST), are there specific tests for each specific profile listed in the call for expressions of interest?

(2) Point 2 of the vacancy notice ERCEA/CA/014/2010 refers to Project Advisers (Function Group IV). Were only candidates having passed a Project Adviser selection procedure considered eligible?

31. In its reply, the Commission stated that, indeed, for each profile published in the Call for expressions of interest, different profile-specific tests were organised. As regards the CAST RELEX database, specific tests focusing on matters relevant only to Delegations were also added to such calls. The complainant succeeded in the CAST RELEX selection for "Adviser Operational Section - Social and Culture Issues" profile. Her profile was, thus, included only in the CAST RELEX database.

32. The Commission reiterated that Section 3.2 of the ERCEA vacancy notice provided that, in order to be declared eligible for the selection procedure, candidates had to be included in the EPSO database for contract agents in Function Group IV. The notice thus required registration in qualified databases which were accessible to the agencies.

33. The only specific eligibility condition mentioned in the ERCEA vacancy notice was that of being included in the EPSO database in Function Group IV. Given that the call for expressions of interest was organised with a view to establishing a reserve list of 30 Project Advisers, it was considered that requesting the specific CAST profile of 'Project Adviser' in the Function Group IV would considerably decrease the probability of its success from the start. Therefore, all applicants registered as Function Group IV in the EPSO databases which were accessible to ERCEA were considered eligible.

34. In her comments, the complainant took issue with the Commission's statement that the notice required that applicants had to be registered in databases which were accessible to the agencies concerned. In particular, the complainant referred to the Commission's statement that "all applicants registered as FGIV in the EPSO databases whose access was available to ERCEA were considered eligible", and pointed out that the information in the part indicating "whose access was available to ERCEA" never appeared in the vacancy notice. In any case, the database in which her name was included was also accessible on the basis of a simple request, a common practice used by the institutions.

35. In its further letter of 13 December 2011 (see above paragraph 6), the Commission informed the Ombudsman that it had decided to allow other EU institutions and agencies to have access to the CAST RELEX 2007 and CAST RELEX 2008 reserve lists as of early 2012, on the following conditions: (i) the candidate should have a "green flag" (that is, the candidate can be recruited by any EU institution); (ii) the position considered should have an international dimension given the specificity of the selection; and (iii) the institutions concerned should obtain the prior agreement of both the Directorate-General 'Development and Cooperation - EuropeAid' (DEVCO) and the European External Action Service (EEAS). The Commission added that other institutions and agencies would be informed as soon as the necessary IT access solution had been put in place.

36. In her observations, the complainant stated that the Commission's approach set out in the above-mentioned letter did not offer any solution to the problem. In fact, access to the CAST RELEX 2007 and CAST RELEX 2008 reserve lists had already been possible from the time of their publication. In the letter EPSO had sent her concerning her success in the CAST RELEX 2008 Call, it was clearly stated that "access to this database will be given to European Institutions, Offices and Agencies". Even though the letter she had received in relation to the CAST RELEX 2007 Call mentioned that access to its database would be given only to DG RELEX, the fact remained, according to the complainant, that all agencies and institutions had access to it on the basis of a simple request. The complainant assumed that this was the reason why agencies did not specifically mention in their vacancy notices that successful candidates on CAST RELEX lists were not eligible.

The Ombudsman's assessment

Preliminary remarks

37. The Ombudsman notes that, in her submissions and observations, the complainant referred to the eligibility requirements laid down in two other notices of competition: (i) the CAST RELEX 2007 Call, and (ii) the CAST RELEX 2008 Call. However, the eligibility requirements laid down in the ERCEA Call required applicants to be on the list of contract agents in Function Group IV. Only the CAST RELEX 2007 Call appears to be relevant for the purposes of this complaint because it is only in that competition that the complainant succeeded in a profile that was at the level of Function Group IV.

38. Next, the Ombudsman observes that he has already dealt with a similar complaint. It, too, raised the issue of whether applicants who were included in the CAST RELEX databases were eligible for the ERCEA selection procedure which is the subject of the present inquiry. In his decision on complaint 1513/2010/VIK, the Ombudsman noted that, in accordance with established case-law, "the essential function of a notice of competition is to give those interested the most accurate information possible about the conditions of eligibility for the post in question so as to enable them to judge whether they should apply for it"[7]. Principles of good administration require the administration clearly and unambiguously to set out in its vacancy notices the conditions that applicants must fulfil.

The ERCEA Call

39. Point 3.2 of the ERCEA Call provided that, to be eligible, candidates had to "be included in the European Personnel Selection Office (EPSO) database for contract agents in the function group referred to under point 2 [Function Group IV]".

40. Having carefully examined the wording of the ERCEA Call, the Ombudsman notes that nothing in the information provided to candidates in that Call suggested that those who had been included by EPSO in a CAST RELEX database for contract agents, Function Group IV, would not be eligible to apply. Nor did the ERCEA Call specify or imply that there were separate databases for contract agents, or that different eligibility rules may be in place for different databases used for recruitment.

41. In line with his conclusions in his inquiry into complaint 1513/2010/VIK, the Ombudsman considers that compliance with the above-mentioned principles of good administration would have been achieved if the ERCEA Call had included clear and specific information about the relevant database(s) of contract agents that would not be taken into account for the purposes of that specific Call.

42. In light of the above, the Ombudsman takes the view that the complainant reasonably concluded that her application fulfilled the requirement laid down in the ERCEA Call. The Ombudsman cannot, therefore, agree that the non-eligibility of the complainant resulted from the wording of the ERCEA vacancy notice.

The CAST RELEX 2007 Call

43. The Commission pointed out that the CAST RELEX Call 2007 specifically mentioned that the Commission was seeking to fill advisory, technical and administrative positions in its Delegations to third countries and to International Organisations. These posts were specifically labelled 'RELEX'. The complainant had applied for and was successful in the RELEX profile with the sub-profile: Adviser - Operational Section - Social and Cultural Issues. According to the Commission, the complainant should have understood that ERCEA could not have access to that specific database, since the profiles registered therein were specific to RELEX.

44. The Ombudsman notes that the CAST RELEX Call 2007 specified that, for the said sub-profile, the place of employment would be "EC Delegations". Furthermore, the letter EPSO sent to the complainant informing her that she was successful in the CAST RELEX 2007 competition clearly mentioned that "access to this database [would] be given to DG Relex".

45. On the basis of the above information, the Ombudsman takes the view that there were elements in the CAST RELEX Call 2007 that could have led the complainant to conclude that she would be eligible to be recruited only by an EU Delegation. The complainant herself does not dispute the fact that she was fully aware that the purpose of the CAST RELEX Call 2007 was to select personnel, primarily, for EU Delegations.

46. However, as the complainant argued, this leaves open the question whether, and to what extent, the list of successful candidates of the CAST RELEX 2007 Call could still be taken into consideration for the purposes of the ERCEA selection procedure, given that both competitions were for the same Function Group (IV).

47. The complainant submitted that there was a practice within the EU, whereby, by means of a simple derogation, institutions recruited,successful candidates from the CAST RELEX lists on posts other than those in the EU Delegations. The Ombudsman notes, however, that the complainant did not provide any evidence to support her statement that such a practice existed. Nor is the Ombudsman aware of any persons with the 'RELEX profile' from the CAST RELEX 2007 Call who were recruited on posts other than in an EU Delegation before 2012, that is, before the Commission decided to make such recruitments possible. This having been said, the Ombudsman takes the view that, irrespective of whether the CAST RELEX lists were accessible to other agencies or institutions before 2012, the fact remains that the CAST RELEX 2007 Call did not contain any information to the effect that the institution(s) would be barred from recruiting contract agents from the list established under that Call for purposes other than filling vacancies in an EU Delegation. As regards the Commission's argument that, in 2009, it informed all other agencies that they were not allowed to recruit staff from the CAST RELEX lists, it suffices to point out that such a note or administrative practice was not known to the candidates of the ERCEA Call, nor laid down in the vacancy notice in question. In fact, it was only after the complainant contested her ineligibility that the Commission informed her about that practice. The prevailing uncertainty as to the administrative rules and practices with regard to the possibility for other agencies and institutions to recruit candidates from the CAST RELEX lists, whether by simple request or derogation, may explain why, in 2011, the Commission informed the Ombudsman that, as of early 2012, other EU institutions and agencies would have access to the relevant CAST RELEX databases.

48. Against this background, the Ombudsman considers that, even after having duly considered the specific circumstances of the CAST RELEX 2007 Call, the complainant could not have arrived at the conclusion that she would not be eligible for recruitment in the context of the ERCEA Call. In the absence of any clear reference in either the ERCEA Call or the CAST RELEX 2007 Call that persons included in the CAST RELEX databases would not be eligible for recruitment by other EU institutions and agencies (such as ERCEA), the Ombudsman concludes that the complainant's allegation and her related claims are well founded.

49. The Ombudsman reiterates that it constitutes good administrative practice for the administration to set out clearly and unambiguously in its vacancy notices the conditions that applicants must fulfil. The ERCEA Call did not lay down any limitations on the eligibility of persons on the CAST RELEX reserve lists. Thus, the Commission should not have rejected the complainant's application in the ERCEA Call on the grounds that she was not included in a certain CAST database. Therefore, the Ombudsman takes the view that, by considering the complainant's application ineligible, the Commission committed an instance of maladministration.

50. In accordance with Article 3(5) of his Statute, when the Ombudsman concludes that there has been an instance of maladministration, he assesses whether there is a possibility to achieve a friendly solution between the parties. In the present case, the ERCEA selection procedure was concluded in 2010. Therefore, asking at this point in time ERCEA to assess again the complainant's application would not bring about any useful results for the complainant. Moreover, in her observations, the complainant stated that she would not accept a solution whereby her application would be considered eligible by ERCEA. In these circumstances, no friendly solution appears possible as regards the present complaint. The Ombudsman will, therefore, make a critical remark below.

B. Conclusions

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

It constitutes good administrative practice for the administration to set out clearly and unambiguously in its vacancy notices the conditions that applicants must fulfil. The ERCEA Call did not lay down any limitations on the eligibility of persons on the CAST RELEX reserve lists. Thus, the Commission should not have rejected the complainant's application in the ERCEA Call on the grounds that she was not included in a certain CAST database. Therefore, the Ombudsman takes the view that, by considering the complainant's application ineligible, the Commission committed an instance of maladministration.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 21 December 2012

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[1] ERCEA/CA/014/2010 - Project Adviser (FGIV).

[2] EPSO/CAST/EU/27/07, RELEX/FGIV (Sub-profile: Operational Adviser - Adviser - Op. Sect. - Social and Cultural Issues).

[3] EPSO/CAST/RELEX/3/08/FG III (Profile: Operations Officer).

[4] The Commission indicated to the Ombudsman that, as regards his inquiries, it would reply on behalf of ERCEA. Therefore, the present complaint was treated as a complaint against the Commission.

[5] See paragraph 6 above.

[6] The complainant submitted a letter from the Commission dated 6 October 2010 rejecting access to the document in question.

[7] See Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 27.