(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

SUMMARY

The complainant is an Irish citizen who participated successfully in the first stage of an open competition organised by the European Personnel Selection Office ("EPSO"). She was subsequently excluded from the competition by the Selection Board on the ground that she did not comply with the educational requirements.

The European Ombudsman concluded that the Selection Board's decision to exclude the complainant was wrong in law. His main findings were subsequently supported by a decision of the Court of First Instance, in a case that concerned the same competition and essentially identical facts and issues as those raised before the Ombudsman.

However, EPSO concluded that it could not provide any remedy to the complainant in response to the Ombudsman's findings. EPSO essentially adopted the view that a complaint to the European Ombudsman under Article 195 of the EC Treaty cannot constitute an effective remedy with respect to an unlawful decision of a selection board to exclude a candidate in a competition organised by EPSO. The present draft recommendation examines EPSO's above position.

The Ombudsman's considerations leading to the draft recommendation

1.1 The complainant is an Irish citizen who participated successfully in the first stage of Open Competition EPSO/C/11/03 (English-language secretaries), but was subsequently excluded from the competition. The Selection Board adopted the view that she did not fulfil the relevant educational requirement.

The Notice of Competition provided as follows:

"You must have successfully completed a course of upper secondary education and/or secretarial studies of at least an equivalent level and obtained the relevant diploma or certificate on completion of the course.

When assessing your education, the selection board will take into account any differences in national education systems. As a general guide, see the examples of the minimum requirements for entrance at this level in the tables annexed to the Guide [for Applicants] (see EPSO website [address provided])."

1.2 For Ireland, the table annexed to the Guide for Applicants (mentioned in the Notice of Competition) indicated a level of "2 honours and 4 passes in Leaving Certificate".

1.3 The complainant holds a 'leaving certificate'. However, the Selection Board concluded that this did not, in itself, constitute evidence of completion of 'upper secondary education'. It referred to the above-mentioned Guide for Applicants and its above-quoted reference to "2 honours and 4 passes in Leaving Certificate", a level that the applicant did not possess.

1.4 It is principally this conclusion of the Selection Board that the complainant challenged in her complaint to the Ombudsman.

1.5 In the course of the inquiry, EPSO made further comments regarding the level of "2 honours and 4 passes in Leaving Certificate" referred to in the Guide for Applicants. It stated that:

"[u]nder the Irish education system, upper secondary-level diplomas give access to university education. To be admitted to university, students must have passed at least 6 subjects in their Leaving Certificate and have gained an honour in two subjects and a pass in four others."

1.6 The complainant presented evidence in support of her view that the Selection Board wrongly concluded that she did not meet the requirement laid down in the Notice of Competition. She submitted copies of two letters that she had obtained from the Irish State Examination Commission and the National Qualifications Authority of Ireland. She argued that those two letters confirmed that the leaving certificate as such amounted to the completion of upper secondary education.

1.7 In a proposal for a friendly solution which he made in the present case, the Ombudsman reminded EPSO of the established case-law of the Community Courts, according to which the essential function of the Notice of Competition is to give those interested in applying for a competition the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it:

"the Selection Board is not empowered to exclude a candidate from the tests on the ground that he does not meet a requirement which was not mentioned in the notice of competition"(2).

1.8 In the present case, the Selection Board excluded the complainant from the competition because she did not have "2 honours and 4 passes in Leaving Certificate". The Ombudsman noted that the requirement of "2 honours and 4 passes in Leaving Certificate" was clearly not included in the Notice of Competition, which exclusively required successful completion of "a course of upper secondary education". The requirement for "2 honours and 4 passes in Leaving Certificate" had merely been mentioned in the Guide for Applicants.

1.9 The Ombudsman furthermore noted that it appeared that the underlying purpose of the requirement of "2 honours and 4 passes in Leaving Certificate" was to ensure that candidates possessed a diploma giving them access to university education. This being so, the Guide for Applicants thus purported to introduce a condition of eligibility additional to that contained in the Notice of Competition, which only required successful completion of a course of upper secondary education.

1.10 In these circumstances, the Ombudsman considered that the Selection Board's decision to exclude the complainant was in breach of the legal framework set out by the Notice of Competition, since it was based on a condition that was not provided for in the Notice. He therefore suggested that EPSO could consider re-examining the complainant's application and taking the measures that would be appropriate and fair.

1.11 The Ombudsman's above conclusion was subsequently supported by the decision of the Civil Service Tribunal in Case F-25/05 Mc Sweeney and Armstrong v Commission(3), which concerned the same open competition as the one at issue in the present complaint. In that case, the Tribunal accepted actions for annulment filed by candidates who had been excluded for the same reason as the complainant had in the present case. The Tribunal found that, as a matter of fact, the holding of a 'Leaving Certificate' satisfied the condition of 'upper secondary education' (paragraph 46(4)), and that the Selection Board should not have rejected the applications of the specific candidates on the ground that they did not have "2 honours and 4 passes in Leaving Certificate".

1.12 EPSO has nevertheless refused to take measures to provide a remedy for the unlawful decision of the Selection Board in the present case. EPSO has essentially adopted the view that (i) as regards, specifically, the above-mentioned Case F-25/05, given that the judgment is effective only between the parties to the dispute, EPSO cannot rely on the Tribunal's findings with a view to providing an effective remedy to the complainant in this case(5); and (ii) in response to a complaint to the Ombudsman, EPSO is generally not authorised to adopt any effective measures in order to provide a remedy in cases like the present one(6).

1.13 The Ombudsman considers EPSO's above-stated position to be wrong, for several reasons.

1.14 With regard to the first above-stated issue, the Ombudsman recalls that Articles 21 and 195 of the EC Treaty provide for the right to complain to the Ombudsman about potential instances of maladministration in the activities of Community institutions and bodies. He also recalls that those Articles offer to citizens of the Union an alternative remedy to that of an action before the Community Courts, with an eye to protecting their rights vis-à-vis the Community Administration(7). The above-mentioned Articles of the EC Treaty, as implemented by the Statute of the Ombudsman(8), should be interpreted and applied in a way that is consonant with their purpose and preserves their useful effect ("effet utile"). In this regard, the Ombudsman refers to a situation in which a complaint to him concerns a decision of a selection board in a recruitment competition and the Community Courts have annulled similar decisions of the same board, on grounds confirming the Ombudsman's conclusions in a friendly solution proposal or draft recommendation. In such a situation and in light of the above Treaty articles, EPSO cannot merely refer to the limited, ratione personae, effect of the court decision, when the Ombudsman requests it to assess the matter also in light of the findings of the pertinent court decision. The Ombudsman understands, of course, the implications of the "res judicata" effect of a court decision. However, even though a candidate who has successfully complained to the Ombudsman may, formally and legally speaking, not be in the same situation as a candidate who successfully challenged a similar decision before the Community Courts, the requirement that EPSO (including the boards) act lawfully applies equally in relation to all candidates. This requirement, in conjunction with the need to preserve the useful effect of the right, provided by the EC Treaty, to complain to the Ombudsman, means that EPSO should adequately address problems of legality identified by the Ombudsman, including those indicated by reference to a court decision concerning other candidates in circumstances similar to those involving the complainant.

1.15 With regard to the second above-mentioned view adopted by EPSO, concerning its own relationship with, and authority over, the selection boards, the Ombudsman notes that EPSO, in its opinion on the present complaint, has not rejected the Ombudsman's position that the complainant's case concerned a potential instance of maladministration in its activities. Instead, it replied to the substance of the complaint and defended the Board's challenged decision. This reflects the approach, adopted by the Ombudsman and endorsed by EPSO, namely, that boards in competitions organised by EPSO are not separate Community bodies, but act as bodies of EPSO and perform EPSO's task of drawing up reserve lists. This includes the taking of individual decisions leading to the establishment of the reserve lists, such as examining whether candidates meet the eligibility criteria laid down in the notice of competition. Hence, when the Ombudsman addresses to EPSO a friendly solution proposal like the one he made in the case at hand, EPSO cannot properly discharge its responsibility for dealing with the case in a meaningful way and for preserving the useful effect of a complaint to the Ombudsman, by saying that it does not have the competence to annul an individual decision by a board and cannot legally give orders to a board. Indeed, even assuming that EPSO does not have the competence formally to annul a board's decision, the board, has, both ratione temporis and ratione materiae, the competence to reconsider and modify its decisions that have been challenged before the Ombudsman. In addition, EPSO may reconvene a board and invite it to reconsider a case, following a relevant friendly solution proposal by the Ombudsman.

The draft recommendation

EPSO should reconsider its position and take measures to provide an effective remedy to the complainant for the unlawful decision adopted by the Selection Board in this case.

EPSO and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, EPSO shall send a detailed opinion by 30 September 2008. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

The Ombudsman finally points out that the position adopted by EPSO in the present case is similar to the position adopted by the European Commission in case 224/2005/ELB.

Strasbourg, 4 June 2008

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) Case T-158/89 Van Hecken v Economic and Social Committee [1991] ECR II-1341, paragraph 25. In that case, the Court assessed whether certain "supplementary criteria" established and applied by the Selection Board for the admission of candidates were additional to those required by the Notice of Competition or whether they merely defined their scope. The Court found that these criteria were in fact additional, and therefore annulled the decision not to admit the applicant to the competition.

(3) Case F-25/05 Mc Sweeney and Armstrong v Commission, judgment of 15 June 2006, not yet reported.

(4) "Il est vrai que l’avis de concours litigieux exige que les candidats soient titulaires d’un diplôme sanctionnant des études de l’enseignement secondaire supérieur («upper secondary education»). Toutefois, en l’occurrence, il est constant que les requérantes sont titulaires d’un «Leaving Certificate», ce qui, précisément, constitue un diplôme relevant de l’enseignement secondaire supérieur. Elles satisfaisaient donc à la condition énoncée dans l’avis de concours lui-même."

(5) EPSO has, inter alia, reasoned that "[c]ompetition candidates who, for reasons of their own, decide not to bring a court action but instead opt to file a complaint with the European Ombudsman may not thereafter benefit from any effects of the Tribunal's judgment establishing an illegality in the individual decisions contested due to some confusion in the publication of the requirements regarding diplomas issued in a given Member State. Any advantage deriving from a judicial finding of this type is reserved only for persons who have appealed to court." (Page 2 of EPSO's opinion sent to the Ombudsman on 7 April 2008.) In that same opinion, EPSO states that "[i]t was only as a result of the Mc Sweeney and Armstrong v Commission judgment that the appointing authority [that is, EPSO], in order to give effect to the judgment, was obliged to reopen the proceedings for both applicants and reconvene the board."

(6) In its opinion sent to the Ombudsman on 7 April 2008, EPSO merely stated that it "would be prepared to accept the solution of a [sic] token compensation for non-material harm" and to apologise to the complainant for the confusion that arose from the way the competition was organised. In her subsequent observations of 29 April 2008, the complainant contested, as she had done in her previous observations, the validity of EPSO's position. She considered EPSO's offer of "token compensation" to be extremely patronising and offensive.

(7) Cf. Case T-193/04 Tillack v Commission [2006] ECR II-3995, paragraph 128.

(8) See footnote 1.