The background to the complaint

1. On [...] 2011, the European Police Office ('Europol') launched recruitment procedure Europol/2011/ [...] for the post of [...] (the 'recruitment procedure'). Point 8.1 of the vacancy notice provided that the "[d]eadline for applications [was] [...] 2011". Point 8.2 foresaw that the selection procedure would be "carried out in accordance with EUROPOL RECRUITMENT GUIDELINES available on Europol's website www.europol.europa.eu".

2. On [...] 2011, the complainant sent his application for the above recruitment procedure by registered post.

3. On 18 March 2011, Europol informed the complainant that, since his application was received after the deadline, Europol was unable to accept it.

4. On 23 March 2011, the complainant informed Europol that his application reached Europol belatedly due to an error committed by the Belgian postal service, which registered it as an internal correspondence (for Belgium), instead of as an international one (for the Netherlands). The complainant attached the proof of having sent the application within the deadline, and emphasised that, in its tender procedures, the European Commission takes into account the date on which applications were sent, rather than the date on which they were received.

5. On 24 March 2011, Europol informed the complainant that its Recruitment Guidelines, to which the notice of competition made specific reference, stated that applications should be received either before or on the date of the deadline, and that belated applications are not accepted. Europol thus stated that it could not disregard its practices.

6. On 25 March 2011, the complainant wrote to Europol and stated that all applicants should have equal recruitment opportunities, whether they live in the Netherlands or in other parts of Europe. Therefore, he disagreed with Europol's practice of not taking the postal date into account. He reiterated that the delay was due to an error committed by the Belgian postal service, and informed Europol that he would complain to the Ombudsman.

7. The complainant turned to the Ombudsman on 8 April 2011. He sent further information to the Ombudsman on 13 May 2011.

The subject matter of the inquiry

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

Allegation:

Europol unfairly rejected the complainant's application.

Claim:

Europol should accept his application for the post.

The inquiry

9. On 25 May 2011, the Ombudsman forwarded the complaint to the Director of Europol, requesting the latter to submit an opinion on the above allegation and claim. Europol submitted its opinion on 31 August 2011.

10. On 9 September 2011, the Ombudsman forwarded the opinion to the complainant, with an invitation to submit observations on it by 31 October 2011. The complainant did not submit any observations.

The Ombudsman's analysis and conclusions

A. Allegation of unfair rejection of the complainant's application and related claim

Arguments presented to the Ombudsman

11. In his complaint, the complainant put forward that his application did not reach Europol within the deadline, due to an error committed by an employee of the Belgian postal service, who registered it as national correspondence. The complainant mentioned that he had complained to the Belgian postal service, which opened an internal inquiry.

12. In the complainant's view, in order to avoid any discrimination, Europol should take into account the date on which the applications were sent instead of the date of their arrival. In that way, no candidate would have to suffer as a result of errors or improper operation of the postal services, whether he or she lives in The Hague or somewhere else in Europe.

13. The complainant referred to the Commission's rules concerning tender procedures, which, contrary to Europol's practice, state that the date taken into account is the date on which the application was sent. He considered that Europol could clarify its internal procedures by taking the Commission's example into account.

14. In its opinion, Europol considered, first, that the Commission's practice concerning deadlines in tender procedures was not relevant in the context of recruitment procedures. Neither the Staff Regulations nor their implementing rules specify how the deadlines for submitting applications in such procedures should be applied. In the application of its broad margin of discretion, the authority empowered to conclude contracts of employment established, in the Recruitment Guidelines, that applications should be received by the deadline. The Recruitment Guidelines were referred to in the vacancy notice and are available on Europol's website.

15. Second, in accordance with the case-law of the European courts, it is not contrary to the principle of equal treatment to request that an application is received, rather than simply sent, by a certain date. Europol referred to the case-law concerning complaints submitted on the basis of Article 90 of the Staff Regulations, which states that such a practice aims at ensuring legal certainty. In Europol's case, this requirement was also justified by the need to ensure that the selection procedure is carried out in a timely manner, without having to wait for long periods in order to make sure that all applications sent within the deadline are received.

16. Third, the courts have established that delivery times of complaints sent by post are not unforeseeable and can be taken into account by a diligent staff member. The administration would breach the principle of equal treatment if it accepted belated applications, unless the delay was due to force majeure or unforeseeable circumstances. In the present case, the receipt provided by the post office to the complainant shows that he filled in a form meant to be used for correspondence within Belgium and did not mention any address. Therefore, it is not established that the mistake was caused by the Belgian post office in question, or that the complainant could not legitimately notice it.

17. Fourth, Europol stated that a delivery time of more than two days was neither abnormal nor unforeseeable. According to Annex II of the amended Directive 97/67[1], the delivery objective is set at D+3 (three working days after postage) for intra-EU cross-border mail. According to International Post Corporation Studies, within the EU, more that 20% of items are received after D+2, which was the deadline in the complainant's case. Moreover, between Belgium and the Netherlands, the average delivery time is 1.9 days, which means that a significant number of items take longer than that to be delivered[2].

18. In sum, in the absence of a force majeure or of unforeseeable circumstances, Europol considered that it had neither the obligation nor the right to take the complainant's application into consideration. Furthermore, that application was received after the first selection round had been completed, and, by the time the complaint was forwarded to Europol, the successful candidate had already accepted the employment offer.

The Ombudsman's assessment

19. At the outset, the Ombudsman recalls that, even if the complainant submitted an argument concerning Europol's general policy as regards deadlines to submit applications in response to vacancy notices, the Ombudsman's inquiry did not concern this issue. The Ombudsman understands that, as long as such a policy is reasonable, objective and known to applicants in advance, it remains within the discretion of the appointing authority. In the present case, Europol announced clearly in the vacancy notice that the selection procedure would be carried out in accordance with its Recruitment Guidelines. The latter moreover established that applications should be received by or on the date of the deadline.

20. Therefore, candidates were, or should have been, aware of this policy. The Ombudsman's inquiry solely concerned the application of such policy, and more specifically, its fair and reasonable application. The Ombudsman recalls that, according to Article 11 of the European Code of Good Administrative Behaviour ('ECGAB'), officials (and, by extension, institutions) "should act impartially, fairly and reasonably".

21. When the Ombudsman opened the present inquiry, the information available to him seemed to point to the fact that the complainant diligently sent his application to Europol. From an objective perspective, this application was sent sufficiently in advance, so that it could reach the latter by the expiration of the deadline.

22. Indeed, statistical data and the time limits provided in Directive 97/67 referred to by Europol, even if valuable in legal disputes, are normally not known to citizens. It is general public knowledge that two days are normally sufficient for a letter sent from Belgium to The Hague, that is, to a major city of the neighbouring country, to reach an addressee, where it is not foreseeable that significant delays may occur in mail delivery. This seemed to be confirmed by the complainant's statement, contained in his letter dated 23 March 2011 to Europol, that the postal worker had confirmed that two days were sufficient for his registered mail to be delivered. Therefore, the fact that the complainant sent his application only two days before the expiration of the deadline did not appear to constitute a manifest lack of diligence on his part.

23. The Ombudsman thus considered that it could be unfair and unreasonable, in the sense of Article 11 of the ECGAB, to discard an application which did not reach its addressee, due to external circumstances completely outside the complainant's control, such as the Belgian postal service's erroneous registration of the complainant's mail and the postal service's failure to deliver it on time.

24. However, in its opinion, Europol explained that, in fact, the complainant used the wrong postal service form ("récipissé de dépôt"), namely, the one meant for certified national mail instead of international mail. Moreover, he only mentioned "EUROPOL" as the addressee, without providing any address or delivery information. The complainant did not challenge this explanation, since he did not use the opportunity to submit observations on Europol's opinion. Moreover, the Ombudsman has seen a copy of the postal service form, and has ascertained that this was indeed so.

25. The Ombudsman concludes, therefore, that the postal service's error in registering and distributing the mail in question was in part due to the complainant's own error.

26. Moreover, the complainant disposed of a copy of the postal service form, as well as a copy of the bill, which mentioned that he had paid for a "recommandé nat[ional]" (certified nat[ional] mail). He thus could have realised that the copy was erroneous and that his application could very well not be delivered on time.

27. Against the above background, the Ombudsman considers that the complainant's application was not delayed due to a force majeure or unforeseeable circumstances, but due to the complainant's own lack of diligence in sending it. Europol was thus entitled not to derogate from its general practice and to reject the complainant's application as belated. Accordingly, the Ombudsman has not identified any instance of maladministration in Europol's behaviour.

B. Conclusions

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

The Ombudsman has not identified any instance of maladministration in Europol's behaviour.

The complainant and Europol will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 March 2012

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[1] Directive 97/67 of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of the quality of service, as amended by Directive 2002/39/EC of 10 June 2002, OJ L 176 of 5.7.2002, p.21 and by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, OJ L 52 of 27.02.2008, p.3.

[2] www.ipc.be