Dear Mr T.,

On 1 October 2001, you made a complaint to the European Ombudsman concerning the advertisement of a post as Detached National Expert in the Employment and Social Affairs DG of the European Commission.

On 19 October 2001, I forwarded the complaint to the President of the Commission. On 30 October 2001, you sent me further information which I forwarded to the Commission on 15 November 2001. On 4 December 2001, you sent me a letter commenting on a letter that the Commission had sent you. The Commission sent its opinion on 31 January 2002. I forwarded it to you with an invitation to make observations, which you sent on 14 February 2002.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant lodged a complaint with the European Ombudsman in October 2001. The complainant is an employee at FAS, the Training and Employment Authority of the Irish government. FAS was among a number of Irish government Department whose employees were invited to submit applications for a post as Detached National Expert in the Employment and Social Affairs DG of the European Commission. Applications were to be submitted to the Commission by 7 May 2001.

The complainant submitted his application on 30 April 2001. The same day, he called the Commission to check if his fax had arrived and was then informed that the position had already been filled. The complainant wrote to the Commission on 31 May 2001 asking for an explanation but did not receive a reply or even an acknowledgement of receipt. The complainant considered it to be maladministration to invite applications for a post already filled. He felt that he should at least have been offered an interview and underlined that he was still interested in the post. He asked for some kind of redress since the procedure had been unfair and not sufficiently transparent.

In summary, the complainant alleged that the procedure had been unfair because the post was filled before the deadline for applications expired.

In an additional letter sent to the Ombudsman, the complainant clarified that the fact that the post was filled before the deadline for applications expired was not the only reason why he considered the procedure to be unfair. To him the procedure had been unfair for several reasons. For example, his application had not been acknowledged, no interview procedure seems to have taken place and the procedure had not been transparent.

THE INQUIRY

The complaint and the additional letter were sent to the Commission for an opinion.

The Commission's opinion

In its opinion, the Commission firstly explained that there are two possible procedures to apply when filling a vacancy for a Detached National Expert. The formal procedure means that the Commission DG having a vacant post informs the Personnel and Administration DG who transmits this information to the Member States via their permanent representations in Brussels. The vacancies are then published in the Member States. Applications are sent to the permanent representations who transmit them to the Commission. A more informal procedure may also be used whereby the Commission DG having a vacancy contacts the Member States directly asking them to propose candidates. This procedure is often used when the DG is looking for someone with very specialised skills in a particular field or with specific language combinations. Additionally, the Personnel and Administration DG maintains a database of applications for Detached National Experts. A DG looking for a particular profile may consult this database for possible candidates.

In the complainant's case, there was no formal publication. A Detached National Expert vacancy occurred in the Commission's Employment and Social Affairs DG. The DG contacted three Irish Departments, including FAS, the Training and Employment Authority, in early 2001 requesting them to propose candidates. As no applications were received from FAS, the DG again contacted FAS who then published the vacancy and imposed a deadline of 7 May 2001 for applications. A number of applications were received from FAS, among them that of the complainant which was received on 30 April 2001.

Whilst on mission in Dublin on 2 May 2001, the Head of Unit concerned took the opportunity to interview two potential candidates based on their written applications. The Commission however underlined that no formal decision had been taken at this stage and it would therefore seem impossible that the complainant was told on 30 April 2001 that the vacancy in question had already been filled. A complete evaluation of all candidates was made before the selection. The decision to recruit the selected candidate was taken on 11 May 2001 and was confirmed on 5 June 2001 in an internal note from the Director concerned. The complainant and the other unsuccessful candidates were informed personally by telephone of the decision not to recruit them.

The Commission regretted the delay in replying to the complainant's letter of 31 May 2001 but stressed that a reply had now been sent on 19 November 2001. The letter basically contained the same information as the Commission gave in its opinion. The letter furthermore assured the complainant that whichever system of recruitment is used to fill a Detached National Expert vacancy no decision to appoint a candidate is taken before the expiry of the deadline. An evaluation of all applications had been made and moreover the complainant's application had been given due and fair consideration. The letter also invited the complainant to send his CV for inclusion in the database for Detached National Expert applications kept by the Commission.

The complainant's observations

The complainant sent the Ombudsman his comments on both the Commission's letter of 19 November 2001 and on its opinion and expressed his disappointment in general about the Commission. More specifically, the complainant put forward the following. The Commission stated that the applications were received from FAS. However, according to the vacancy notice, FAS did not channel any applications but instructed individuals to apply directly to the Commission, as the complainant did. The complainant was keen to find out if the successful candidate had in fact been put forward by FAS or if she had applied individually as the complainant. It was the complainant's view that this would affect the equity of the procedure.

The complainant stated that he had not been informed by phone of the decision not to recruit him. The only information he obtained was when he himself phoned the Commission on 30 April 2001. The complainant furthermore put forward that he knew from a source within the Commission that the decision to appoint someone "from the Department" had already been taken prior to 30 April 2001. Also, when asked about the matter in late May 2001, the Head of Unit was unaware of the fact that the complainant had applied for the post. The complainant did therefore not believe that his application had been given any proper consideration.

The complainant was also critical towards the informal recruitment procedure used by the Commission as it allowed Heads of Unit to appoint whomever they please without having to respect an established procedure. Furthermore, the complainant wondered why he was invited to send his CV for inclusion in the database for Detached National Expert applications when he had already supplied his CV.

THE DECISION

1 The fairness of the recruitment procedure

1.1 The complaint concerned the filling of a post as Detached National Expert in the Employment and Social Affairs DG of the European Commission, for which the complainant had applied. In his complaint and in an additional letter, the complainant alleged that the procedure had been unfair because the post was filled before the deadline for applications expired, his application had not been acknowledged, no interview procedure seems to have taken place and the procedure had not been transparent.

1.2 The Commission explained that the procedure used was an informal procedure sometimes used for Detached National Experts. A complete evaluation of all candidates was made before the selection and the decision to recruit the successful candidate was taken on 11 May 2001, i.e. after the deadline of 7 May 2001. As regards the complainant's letter of 31 May 2001, it regretted the delay in replying but stressed that a reply had been sent on 19 November 2001.

1.3 The complainant's main argument was that the procedure had been unfair because the post was filled before the deadline expired. The complainant relies on a telephone call in which he was informed thereof. The Commission stated that a decision to fill the post was taken on 11 May 2001, i.e. after the deadline of 7 May 2001. The Ombudsman notes that, even if it is true that the complainant was informed during the telephone conversation that the post had already been filled, it has not been sufficiently proved that the Commission's decision was not taken on 11 May 2001 as put forward by the Commission. The Ombudsman therefore finds that there is no maladministration as regards this aspect of the complaint.

1.4 As regards the complainant's further arguments, the Ombudsman firstly notes that no written acknowledgement was sent to the complainant following his application on 30 April 2001. It is good administration to acknowledge letters. The present case however prove a particular situation in that the Commission used an informal procedure whereby it contacted FAS, the Training and Employment Authority of the Irish government, and asked it propose candidates. Under these circumstances, the Ombudsman does not consider the omission to acknowledge the application to constitute maladministration. As far as the interview procedure is concerned, the Ombudsman is not aware of any rule or principle that would oblige the Commission to conduct interviews as part of the recruitment procedure. In the case interviews are arranged, it lies within the Commission's discretion to decide on the arrangements. The Commission must thereby aim at a procedure that is as fair as possible and it would be highly recommendable to decide on interviews after all applications arrived. However, the Commission has provided reasons for its action and even if the complainant questions the procedure, it has not been shown that the Commission thereby violated any rules or did not act fairly. Regarding the transparency of the procedure, the Ombudsman does not consider that the complainant has put forward any proof to support his argument. The Ombudsman therefore finds that there is no maladministration as regards these aspects of the complaint.

1.5 In addition, the Ombudsman notes that the complainant sent a letter to the Commission on 31 May 2001 to ask questions in relation to the recruitment procedure. Despite the fact that the outcome of the recruitment had not been communicated in any written form to the complainant, the Commission did not immediately reply to the letter. The Commission replied to the letter only on 19 November 2001, i.e. after the complainant had turned to the Ombudsman with his complaint.

1.6 The complainant's letter of 30 April 2001 did not receive a reply for over six months. According to the Commission's Code of Good Administrative Behaviour, if a reply cannot be sent within fifteen working days, a holding reply should be sent, indicating a date by which the addressee may expect to be sent a reply. The Commission's failure to follow its own Code in this case was an instance of maladministration. The Ombudsman will therefore address a critical remark to the Commission.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The complainant's letter of 30 April 2001 did not receive a reply for over six months. According to the Commission's Code of Good Administrative Behaviour, if a reply cannot be sent within fifteen working days, a holding reply should be sent, indicating a date by which the addressee may expect to be sent a reply. The Commission's failure to follow its own Code in this case was an instance of maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past, and given that the Commission has now replied to the letter, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

Jacob SÖDERMAN