Strasbourg, 28 August 2008

Dear Mr X,

On 22 May 2006, you submitted a complaint to the European Ombudsman against the European Commission concerning your non-recruitment by the Commission after you were included on the reserve list of Open Competition COM/A/5/01.

On 20 June 2006, I forwarded the complaint to the President of the Commission. The Commission sent its opinion in French on 6 September 2006 and a translation into Dutch on 20 September 2006. I forwarded it to you with an invitation to make observations, which you sent on 23 and 29 October 2006.

By letter of 14 November 2007, I asked the Commission to reply to five additional questions concerning your complaint. I informed you accordingly in a letter of the same day. The Commission sent its reply in English on 31 January 2008 and a translation into Dutch on 11 February 2008. I sent the latter to you with an invitation to submit observations, which you sent on 11 March 2008.

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

I apologise for the length of time it has take to deal with your complaint.

THE COMPLAINT

Background

This complaint is the follow-up of an earlier complaint (ref. 3856/2005/OV) which the complainant lodged in December 2005. The relevant facts of that complaint were as follows:

On 13 March 2002, the complainant was informed that his name was put on the reserve list of Open Competition COM/A/5/01 (principal administrators in the field of internal audit, career A5/A4), which had been organised by the European Commission. The Notice of Competition(1) mentioned that the intention was to constitute a reserve list of 30 persons for about 25 vacancies. However, according to the complainant, only 18 persons were put on the reserve list, whose validity was extended four times until 31 December 2006. According to the complainant, it appears that 14 of the 18 laureates from the reserve list were recruited in the autumn of 2002. From different sources within the Commission, the complainant understood that there was a huge need for auditors within the Commission. However, the complainant never received a job offer during the time of the reserve list’s validity. The complainant also pointed out that the relative percentage of Dutch officials in the EU institutions is low.

In his complaint to the Ombudsman, the complainant made 11 allegations, which he termed “complaints”, about the way in which recruitment within the Commission takes place, as well as five claims.

In his reply of 16 January 2006, the Ombudsman informed the complainant that, in accordance with Article 2(4) of the Statute of the European Ombudsman, his complaint was inadmissible because it did not appear that the complainant had made the appropriate prior administrative approaches with regard to the 11 allegations and five claims set out in his complaint. The Ombudsman advised the complainant to write to the Commission concerning his various allegations and claims.

The present complaint 1584/2006/OV

On 22 May 2006, the complainant lodged a new complaint with the Ombudsman, in which he indicated that, on 20 March 2006, he wrote to the Directorate-General for Personnel and Administration ("DG ADMIN") of the Commission, but received no reply or acknowledgement of receipt. In his letter to DG ADMIN, the complainant repeated, albeit with some changes, the 11 "complaints" as well as claims (1), (2) and (4) of his initial complaint 3856/2005/OV to the Ombudsman.

The complainant asked the Ombudsman to investigate his original complaint and also referred to his letter of 20 March 2006 to DG ADMIN with respect to the substance of his complaint.

The Ombudsman's approach

Considering that some of these 11 "complaints" were statements rather than allegations, the Ombudsman took the view that it was necessary to identify the allegations and claims that the complainant wished to make. In the Ombudsman's view, these allegations and claims could be summarised as follows:

1. The complainant alleged that there has possibly been abuse of power by the President of the Selection Board, because, at the time, he was the Commission’s Acting Director-General of the Internal Audit Service ("IAS") and there is a strong presumption that, during the oral test, a selection was already made of the candidates to be recruited by the IAS. In this context, the complainant referred to Article 8(1) of the European Code of Good Administrative Behaviour(2) (the "Code") in this context. He went on to note that four persons from the same reserve list had, shortly after having been put on the reserve list, already become head of so-called "Internal Audit Capability" units within the Directorates-General of the Commission ("complaints" 1 and 3 in the complainant's letter of 20 March 2006 to DG ADMIN).

2. The complainant alleged that certain recruitment conditions invoked by the IAS as not being fulfilled by him - which was not the case - were not mentioned in the internal recruitment documents for the post in question ("complaint" 2).

3. The complainant alleged that he received no feedback on the interviews he did after being placed on the reserve list. The complainant referred to Articles 12(1) and 18 of the Code in this context. He further alleged that there had often been no or a late reaction to his requests for clarification, information or questions concerning potential vacancies (Article 17(1) of the Code) ("complaint" 4).

4. The complainant alleged that there was discrimination by the Commission in the recruitment, namely, on the basis of age (the complainant was 48 years of age at the time he lodged the complaint), language and nationality. The complainant referred to Article 5(3) of the Code in this context. With regard to this allegation, the complainant also observed that, because of certain contacts within the Commission, other candidates were in a privileged position to be recruited ("complaints" 5 and 8).

5. The complainant alleged that, in the majority of cases, he received no reaction when he brought his candidature to the attention of Commission officials (Human Resources managers, auditors and financial managers), which he had done about a hundred times, or when he applied for existing vacancies. The complainant referred to Article 12(1) of the Code in this context ("complaint" 7).

6. The complainant alleged that, after an interview on 25 October 2005 with officials from the Directorate-General for Taxation and Customs Union ("DG TAXUD"), he received an unreasoned negative reply, and that he was not recruited because he did not know French. However, neither in the vacancy notice nor at the interview had there been any mention of the fact that knowledge of French was a requirement. The complainant referred to Articles 10(2) and 20(2) of the Code in this context ("complaint" 9).

7. The complainant alleged that his legitimate expectations were not respected as, on 7 October 2005, he received an e-mail from the Directorate-General for Research ("DG RTD") which contained an announcement of an interview which however did not take place. The complainant referred to Article 10(2) of the Code in this context ("complaint" 10).

8. The complainant alleged that his legitimate expectations were not respected as, although he had received, on 16 February 2006, an e-mail from the Directorate-General for Employment ("DG EMPL") containing an announcement of an interview, on 8 March 2006 he had been informed, without any explanation, that he was no longer invited for an interview. The complainant referred to Article 10(2) of the Code in this context ("complaint" 11).

The complainant furthermore claimed that:

1) the units of the Directorates-General where he went for an interview should inform him in writing of the specific reasons why he was not recruited;

2) the Commission should inform him of the general reasons why he was not recruited;

3) the Commission should make efforts in the short term to offer him a post.

In the Ombudsman's view, claims 3) and 5) of the original complaint 3856/2005/OV of December 2005 were still inadmissible as they had not been raised in the complainant's letter of 20 March 2006 to DG ADMIN. As regards the rest of the complaint, the Ombudsman decided to open an inquiry.

THE INQUIRY

The Commission's opinion

The Commission pointed out that the reserve list of Open Competition COM/A/5/01 was published in March 2002.

With regard to the complainant’s eight allegations, the Commission made the following comments:

1) As regards the first allegation, the Commission observed that the Acting Director-General of the Commission's IAS had exercised a temporary mandate as President of the Selection Board for the Open Competition. The exercise of this mandate was independent of the main function of Acting Director-General of the IAS.

The Commission pointed out that the figure concerning the number of laureates recruited by the IAS which the complainant had mentioned (14 out of 18) was erroneous. It went on to explain that the IAS had recruited a total of seven laureates from the reserve list of the Open Competition.

The Commission therefore considered that the complainant's allegation was not substantiated, and stated that it could not detect an abuse of power by the President of the Selection Board of the Open Competition.

2) As regards the second allegation, the Commission stated that it had followed the normal procedure of Article 29 of the Staff Regulations of Officials of the European Communities (the "Staff Regulations") for the filling of the vacant posts in the IAS, namely, the publication of the posts in order to make them available for purposes of internal mobility. When it appeared that the internal candidates did not fulfil the conditions, the Commission turned to the reserve list of the Open Competition.

As regards the interviews of the laureates in the Open Competition, the Selection Board of the IAS gave priority to those candidates whose profile corresponded best to the requirements of the vacant posts. The complainant did not specify which recruitment conditions he referred to. The Commission could therefore not examine in detail the substance of this allegation.

3) As regards the third allegation, the IAS did not organise a formal interview with the complainant, as the A5 posts (Principal Administrator) had been filled rapidly. It is true that, in October 2004, the IAS proposed to meet the complainant during one of his visits to Brussels, but this meeting finally never took place.

As regards the other services concerned, and in the absence of any further specific information from the complainant, the Commission was of the opinion that its services systematically replied to all his requests during the period in question.

4) As regards the fourth allegation, the Commission stated that, in 2001 and 2002, it organised several competitions for A5/A4 career posts, for which the Notice of Competition required a minimum of 12 years of professional experience. The laureates of these competitions were often between 40 and 50 years of age, and the Commission recruited them on the basis of their qualifications for the posts involved. The Commission pointed out that age does not play any role in the recruitment procedure.

The Commission moreover stressed that it respects the principles of non-discrimination and geographical balance (Articles 1(d) and 27 of the Staff Regulations). With respect to linguistic requirements, it underlined that many post descriptions, and, more particularly, those concerning high-level posts, including Principal Administrators, require knowledge of English and French. These requirements corresponded to the reality of a job in the Commission and in the other institutions.

5) As regards the fifth allegation, the Commission stated that its replies to the other allegations addressed in general the questions raised. The Commission pointed out that, sometimes, Heads of Unit who have published vacant posts receive a huge number of e-mails from interested laureates. However, vacancies that are published on the basis of Article 29(1)(a) (and eventually (b)) of the Staff Regulations are not addressed to laureates of competitions. Candidatures from such laureates have to be considered as expressions of interest from citizens. In this regard, the Commission accepted that, from an administrative perspective, it has an obligation to reply systematically to all applications, in order to inform laureates in the event that their application submitted in the context of a procedure for filling the post is not admissible. The Commission added that it could only regret if one of its services had not complied with this obligation.

The Commission pointed out, however, that the complainant had received reasoned replies from the recruitment service of DG ADMIN and, more recently, from the cabinet of Vice-President Kallas. The Commission attached copies of those replies to its opinion.

6) As regards the sixth allegation, the Commission pointed out that the complainant sent a spontaneous candidature to DG TAXUD for an A-grade post. The notice of vacancy COM/2005/3279 (concerning an A grade post of an official "responsible for internal control") in Unit TAXUD/01 had been published at the appropriate time. There were no internal candidates in the sense of Article 29(1)(a) of the Staff Regulations and only three expressions of interest had been received for the post in question. The spontaneous candidatures of two other laureates of the competition were also examined. One of these laureates was the complainant.

The complainant was interviewed on 25 October 2005. Two other persons were also interviewed. The result was communicated to DG ADMIN on 17 November 2005.

By letter of 21 November 2005, the complainant was informed that DG TAXUD had selected another candidate for the said post. By e-mail of 26 November 2005, the complainant asked for "the exact and concrete motives you have for not appointing me". The Head of Unit TAXUD/01 replied by letter of 7 December 2005. It appears from this letter that the complainant was not selected because, in the Head of Unit's opinion, there was a candidate who was better qualified for the post and whose profile corresponded more closely to the requirements of the vacancy notice. Moreover, the description of the post indicated clearly that a good knowledge of French was required.

On 23 June 2006, the complainant sent a new spontaneous application to DG TAXUD for other potential vacancies. The Commission's reply of 26 June 2006 indicated that, for the moment, there was no vacant post which corresponded to the complainant's profile.

7) As regards the seventh allegation, the Commission stated that it had not been able to find the e-mail to which the complainant had referred. The complainant was asked to provide the Commission with a copy of this e-mail in order to allow it to investigate whether there was really a reason to complain.

8) As regards the eighth allegation, the Unit EMPL F/3 published three posts of auditor, all bearing a deadline of 7 February 2006.

The complainant expressed his interest in the three posts. In two cases, his CV did not correspond to the required criteria. The Unit filled the three posts concerned by means of a transfer of internal candidates from the Commission, who, according to Article 29 of the Staff Regulations, had priority.

As regards the complainant's first two claims, the Commission stated that its answer derived from its replies to the allegations.

As regards the complainant's third claim, the Commission stated that it was not possible to offer a post to the complainant in the near future.

The complainant was on a reserve list, and it followed from Article 29 of the Staff Regulations that having recourse to reserve lists is subsidiary to internal and inter-institutional mobility. Moreover, it was in the first place for the "Human Resources" services of the DGs to assess, in cases where they are not able to find an internal candidate, whether the profile of a laureate corresponds to a published post. These principles apply to all laureates who are on reserve lists. The principle of equality of treatment does not allow the institutions to privilege one particular laureate by accelerating his recruitment.

The Commission also underlined that the complainant had had several occasions to prove his qualities. However, it has to be noted that the services concerned had requested the recruitment of other persons, which meant that the complainant had never demonstrated that he possessed the required qualifications to be recruited for the posts for which he applied.

The Commission concluded that the complainant's allegations and claims were unfounded.

The complainant's observations

The complainant made, in summary, the following observations with regard to the Commission's comments on his allegations and claims:

1) The complainant stated that he never alleged that 14 of the 18 laureates had been recruited by the IAS. The complainant stated that 14 persons whose names had been on the short-list made up of 18 persons had been recruited within a couple of months and that the majority of these 14 persons had been recruited by the IAS.

As regards the Commission's position that his allegation was not substantiated, the complainant stated that the proof was that, very quickly after the reserve list had been established, seven persons were recruited by the IAS. The only thing that was unclear was whether there had been interviews with other laureates from the reserve list. If this had not been the case, then this showed that there had been a pre-selection of laureates during the oral examination.

2) As regards the question of which recruitment conditions were concerned, the complainant referred to two documents, namely, a vacancy notice and an e-mail addressed to him, and attached copies of these documents to his observations (enclosures 1 and 2). The vacancy notice mentioned that candidates needed to master English or French, whereas the e-mail addressed to him mentioned that they needed to master English and French. The e-mail also referred to the requirement of international experience which the vacancy did not mention.

3) The complainant stated that he did not receive a reaction to the interviews that took place on 15 May 2002, 3 July 2002 (two interviews), 15 March 2004 and 24 November 2004 in DG Budget and to the interview that took place on 19 November 2004 in the Statistical Office of the European Communities ("Eurostat").

The complainant also mentioned that he had sent many e-mails and only rarely received a reaction. He pointed out that it would require a lot of work to submit a complete list of his e-mails. He therefore made a random selection and the Commission could then indicate whether and when it replied. The complainant stated that, if necessary, he would be ready to compile a more comprehensive list of the e-mails concerned. For the moment, the complainant mentioned 20 e-mails which he had sent to certain Commission officials between January 2005 and September 2006(3).

On 29 October 2007, the complainant sent to the Ombudsman copies of 16 of the above 20 e-mails and pointed out that he could not find the other e-mails anymore.

4) As regards his fourth allegation, the complainant gave the following example: a member of the Selection Board of the Open Competition was a Finnish national and a candidate on the reserve list was also a Finnish national. That Finnish candidate was immediately recruited after the constitution of the reserve list in the Unit of the said Board member. After some time, this Board member became an advisor to the Acting Director-General who was also a Finnish national. The Finnish laureate from the reserve list subsequently replaced the Board member within the Unit.

5) The complainant did not agree that the Commission's replies to the other allegations answered the questions raised. He stated that the Commission had either not reacted at all or reacted only after serious delays. He referred in this context to his comments under point 3 above. The complainant also stated that the replies from DG ADMIN and from Commissioner Kallas were superficial and did not address the points he had raised.

6) The complainant observed that, contrary to what the Commission stated, the vacancy notice did not mention that a good knowledge of French was required.

The complainant also pointed out that, shortly after the interview on 25 October 2005 concerning a post as internal control officer, he had again applied for a post as internal auditor within DG TAXUD on 22 December 2005. DG TAXUD did not invite him for an interview, although Mr K. of DG TAXUD had been of the opinion that the complainant would be more appropriate for the function of internal auditor. The Commission's statement in its reply of June 2006 "that, for the moment, there was no vacant post which corresponded to the complainant's profile", was therefore to be considered as a lie and inappropriate.

7) The complainant referred to an e-mail received from the Commission which, according to him, clearly showed that expectations had been raised. The complainant attached a copy of this the e-mail to his observations.

8) The complainant again referred to e-mails from the Commission which, in his view, showed that his legitimate expectations had not been respected. The complainant attached copies of these e-mails to his observations.

As regards his first claim, the complainant mentioned that he received no reaction with respect to six interviews.

As regards his second claim, the complainant still wondered what the reasons were as to why he was not recruited, considering the high demand within the Commission for experienced auditors.

As regards his third claim, the complainant stated that it would be fair if the Commission could examine what were the forthcoming possibilities for recruitment.

The complainant stated that the last paragraph in the Commission's opinion in which the latter raised questions concerning his qualities was irritating, inappropriate and insulting. Considering his knowledge, experience and position, the complainant took the view that he was probably one of the best candidates on the reserve list. The complainant added that the Commission's questioning of his capacities for a "simple function" such as an auditor was to be considered as "ridiculous".

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

The Ombudsman therefore wrote to the Commission on 14 November 2007, asking it to reply to the following five questions:

"1) In his observations with regard to the third allegation and the first claim, the complainant mentioned that he has not received a reaction from the Commission with regard to six interviews (namely, in DG Budget on 15 May 2002, 3 July 2002 (two interviews), 15 March 2004 and 24 November 2004, and in DG ESTAT on 19 November 2004).

With regard to the same allegation, the complainant also gave a list of 20 e-mails he sent to the Commission between 7 January 2005 and 13 September 2006 without having received a reaction.

Could the Commission therefore please indicate what feedback it gave to the complainant as regards these six interviews and how it dealt with the 20 e-mails?

2) In its letter of 7 December 2005, DG TAXUD informed the complainant that "the relevant job notice indicated a need to be able to work in the French language. On this point you did not compare favourably with the candidate I eventually chose". It appears however that vacancy notice COM/2005/3279 (job ID 57006) which the complainant attached to his observations (enclosure 3) did not mention knowledge of French as a requirement. The Ombudsman also notes that the text to which the Commission referred and which it attached to its opinion (enclosure II.6) is not the vacancy notice, but the job description of the person who was finally recruited.

In these circumstances, could the Commission therefore please provide further clarifications concerning the alleged requirement that candidates needed to master French for the said post?

3) In his observations with regard to allegations 7) and 8), the complainant referred to and attached e-mails of 7 October 2005 (enclosure 4) and 16 February 2006 (enclosure 5) which had been sent to him by DG RTD and DG EMPL respectively. In the first e-mail of 7 October 2005, an official from DG RTD informed the complainant that "if you are still available, I would like to propose to soon foresee a discussion at our premises in Brussels. At this occasion you could further explain your candidature. From our side we could then discuss eventual future possibilities. In case of interest, please confirm to me". The complainant replied on the same day proposing various dates. In the second e-mail of 16 February 2006, an official from DG EMPL informed the complainant that "Mr [B], Head of Unit, and myself, have found your related experience quite interesting and we will certainly contact you shortly to arrange for an interview". In this e-mail, the complainant was also asked to indicate which competition he had passed. The complainant replied on the same day, indicating that he was a laureate of Open Competition COM/A/5/01.

Could the Commission please explain why the interviews which were announced to the complainant were not held and specify whether and how the complainant was informed that the proposed interviews would not take place after all?

4) In his observations with regard to the third claim, the complainant indicated that, in the last paragraph of its opinion, the Commission raised questions concerning his qualifications. The complainant considered this to be irritating, inappropriate and insulting. Could the Commission please react to this?

5) Could the Commission please also inform me whether the validity of the reserve list of Open Competition COM/1/5/01 has been extended beyond 31 December 2006?"

The Commission's reply

The Commission replied, in summary, as follows to the five questions:

1) The Commission stated that, as a general rule, external candidates are informed of the follow-up of their candidature and of the results of their interviews. If the number of candidatures received was high, it is possible for the services to give their replies to the candidates orally. This possibility is foreseen in the "Guidelines on mobility", whose section entitled "Improving the organisational framework for filling vacant posts" applies equally to candidatures from external candidates.

After having consulted the relevant services, the Commission attached to its reply a series of written replies which were sent to the complainant, as well as the explanations provided further to spontaneous applications submitted by him. In view of these documents, the Commission considered that it had fulfilled its "devoir de sollicitude" towards the complainant.

2) The Commission attached to its reply vacancy notice COM/2005/3279 which was published on 29 September 2005 and drew the Ombudsman's attention to the fact that the link which existed in this publication under "Job ID 57006" led directly to the job description of the vacant post. The job description of this post mentioned, under "languages", that knowledge of English and French was required.

The Commission further recalled that vacancy notices are published in accordance with Article 4 of the Staff Regulations and are addressed only to the officials of the institution (and not to laureates of open competitions). The Commission was thus astonished that the complainant made reference to a vacancy notice.

3) As regards the e-mails of 7 October 2005 from DG RTD and of 16 February 2006 from DG EMPL, the Commission noted that two of its officials had indeed confirmed to the complainant that he would certainly be invited for an interview. The Commission recalled, however, that only the Appointing Authority is entitled to invite laureates of competitions for formal interviews. It added that it could only regret that the relevant information might have raised expectations on the part of the complainant and that the DGs in question did not ask the Appointing Authority to invite the complainant.

The Commission however pointed out that DG EMPL had sent an e-mail to the complainant on 8 March 2006, thanking him for his interest and informing him that the unit had received a high number of applications and that another candidate had finally been chosen.

As regards the post in DG RTD, the Commission stated that, after having received a high number of internal candidatures and applications from laureates of open competitions, the service concerned finally filled the post by means of an internal transfer of a permanent official.

4) The Commission stated that its initial opinion did not raise doubts about the complainant’s professional qualities but only concerned the result of the recruitment interviews which the complainant had had with several of its services. These comments concerned only the specific qualifications for the posts in question and did not constitute a judgment on the complainant’s professional qualities in general.

It was only after having compared the performances of all the candidates in the recruitment interviews that a service proposes the recruitment of the person whose profile corresponds best to the vacant post and who possesses the necessary qualifications for carrying out the tasks foreseen.

5) The Commission stated that the validity of the reserve list of Open Competition COM/A/5/01 expired on 31 December 2006.

The complainant's additional observations

The complainant stated that the Commission tried to deceive the Ombudsman by trying to give the impression that it had acted carefully and that it had always reacted. This was not true, however.

1) The complainant stated that the Commission did not react to the six interviews either in writing or orally. The Commission's suggestion that it reacted orally was therefore not true, and the Commission did not indicate who would give an oral feedback or when such feedback would be given. The complainant pointed out that the e-mails which the Commission attached concerned reactions to his information requests or applications, but not reactions with respect to interviews as the Commission tried to imply. Moreover, only in a small number of cases did the Commission react to the complainant's information requests or applications. The complainant considered that the Commission had thus not replied to the Ombudsman's question.

As regards the lack of reaction to the complainant's 20 e-mails selected randomly, the complainant pointed out that, from the documents attached by the Commission to its reply, only two concerned these e-mails. The other documents were reactions to other e-mails from the complainant. The complainant calculated that the Commission only reacted to approximately 10 % of his e-mails.

2) The complainant pointed out that it was undisputed that, in vacancy notice COM/2005/3279, knowledge of French was not mentioned as a condition. The vacancy notice did not, therefore, give a good idea of the required conditions.

3) The complainant stated that the Commission's comment, according to which only the Appointing Authority can invite candidates for formal interviews, had no relevance as it could not be expected from him to know who within the DG is responsible for such issues. The complainant maintained that expectations had been raised which were not fulfilled and that no specific explanations were put forward by the Commission. Thus, the Commission did not really address the Ombudsman's question.

4) The complainant mentioned again that the Commission mostly failed to give feedback on the interviews.

THE DECISION

1 Preliminary remark

1.1 The European Ombudsman notes that the present complaint was lodged on 22 May 2006 and that the complainant's allegations, in particular those concerning the alleged lack of reaction to his correspondence, related obviously to the period predating the complaint. However, in the complainant's observations, as well as in the European Commission's opinion, there were references to correspondence postdating the date of the complaint. The Ombudsman also referred to this later correspondence (up to the date of 13 September 2006) in his further inquiries addressed to the Commission.

1.2 In the context of the present complaint, when analysing the relevant allegations, the Ombudsman will therefore also take this later correspondence into consideration.

2 Alleged abuse of power by the President of the Selection Board

2.1 On 13 March 2002, the complainant was informed that his name had been put on the reserve list of Open Competition COM/A/5/01 (principal administrators in the field of internal audit, career A5/A4), which was organised by the European Commission. The Notice of Competition mentioned that the intention was to have a reserve list of 30 persons for about 25 vacancies. However, according to the complainant, only 18 persons were put on the reserve list, whose validity was extended four times until 31 December 2006. From different sources within the Commission, the complainant understood that there was a great need for auditors within the Commission. However, the complainant never received a job offer during the time of the reserve list’s validity.

In his complaint to the Ombudsman, the complainant alleged that there had possibly been an abuse of power by the President of the Selection Board, because, at the time, he was the Acting Director-General of the Commission’s Internal Audit Service ("IAS"). The complainant contended that there was a strong presumption that, during the oral test, a selection was already made of the candidates to be recruited by the IAS. The complainant referred to Article 8(1) of the European Code of Good Administrative Behaviour(4) (the "Code") in this context. He also noted that four persons from the same reserve list had, shortly after having been put on that list, already become head of the so-called "Internal Audit Capability" units within the Commission's Directorates-General.

2.2 In its opinion, the Commission observed that the Acting Director-General of the IAS had exercised a temporary mandate as President of the Selection Board of Open Competition COM/A/5/01 and that the exercise of this mandate was independent from the main function of Acting Director-General of the IAS. The Commission pointed out that the figure for the number of laureates recruited by the IAS to which the complainant referred (14 out of 18) was erroneous. The IAS specified that it recruited a total of seven laureates from the competition. The Commission therefore considered that the complainant's allegation was not substantiated, and added that it could not detect an abuse of power by the President of the Board.

2.3 In his observations, the complainant stated that his allegation was proven by the fact that, very quickly after the reserve list had been established, seven persons were recruited by the IAS.

2.4 The Ombudsman notes that the complainant has not put forward any concrete evidence to support his allegation that there had possibly been an abuse of power by the President of the Selection Board. In the Ombudsman's view, the mere fact that the Acting Director-General of the IAS was also the President of the Board of Open Competition COM/A/5/01 is not, in and of itself, indicative of a potential abuse of power. Given that the Open Competition was designed to recruit internal auditors, it does not appear abnormal that someone specialised in the field, such as the Acting Director-General of the IAS, served as President of the Board. As regards the complainant's reference to Article 8 of the Code, this Article provides that the official shall be impartial and independent. However, the complainant has not provided any evidence to show or to suggest that the President of the Board was not impartial or independent when carrying out his functions. No instance of maladministration can therefore be found with regard to this aspect of the case.

3 The allegation that certain recruitment conditions were not mentioned previously

3.1 The complainant alleged that certain recruitment conditions invoked by the IAS as not being fulfilled by him - which according to the complainant was not the case - were not mentioned in the internal recruitment documents for the post in question.

3.2 In its opinion, the Commission pointed out that the complainant did not specify which recruitment conditions he referred to, and that, therefore, it could not examine in detail the substance of this allegation.

3.3 In his observations, the complainant referred to a vacancy notice (bearing a print-out date of 7 September 2006) and to an e-mail from the Commission sent to him on 11 October 2004. The complainant pointed out that the vacancy notice mentioned that candidates needed to master English or French, whereas the e-mail addressed to him mentioned that candidates needed to master English and French. The e-mail also referred to the requirement of international experience, which the vacancy did not mention either.

3.4 The Ombudsman notes that, in the absence of any other details provided by the complainant with regard to this allegation, the documents he attached to his observations need to be examined. Those documents included a vacancy notice (enclosure 1) bearing a reference number COM/2006/2982 (Job ID: 69865, publication: from 25 July 2006 to 14 September 2006), which concerned a position that was to be available from 2 October 2006. This vacancy notice mentioned, among the recruitment conditions "the ability (...) to draft clearly and concisely either in French or in English (...)". The e-mail which the complainant attached as enclosure 2 of his observations was sent by the Commission on 11 October 2004 in reply to an e-mail from the complainant dated 5 October 2004. The Commission's e-mail indeed referred to "an excellent working knowledge of both spoken and preferably written English and French" and also to international experience. However, this e-mail predates the said vacancy notice by nearly two years and can thus clearly not be a reply to the complainant with regard to this vacancy notice. The Ombudsman therefore concludes that the complainant has not provided evidence to substantiate his allegation that he was not selected because he did not know English and French. No instance of maladministration is therefore found with regard to this aspect of the complaint.

4 Alleged lack of feedback on interviews and lack of reaction

4.1 The complainant alleged that he received no feedback on the interviews he participated in after his name had been placed on the reserve list. The complainant referred to Articles 12(1) and 18 of the Code in this context. He further alleged that there often had been no reaction or a late reaction to his requests for clarification, information or questions concerning potential vacancies (Article 17(1) of the Code). In connection with this allegation, the complainant claimed that the Directorates-General where he had gone for an interview should inform him in writing of the specific reasons why he was not recruited. The complainant also claimed that the Commission should inform him of the general reasons why he was not recruited.

4.2 In its opinion, the Commission stated that the IAS did not organise a formal interview with the complainant, as the A5 posts (Principal Administrator) had been filled rapidly. It was true that the IAS proposed in October 2004 to meet the complainant during one of his visits to Brussels, but this meeting finally never took place. As regards the other services concerned, and in the absence of any further information from the complainant, the Commission was of the opinion that its services systematically replied to all the complainant's requests during the reference period.

4.3 In his observations, the complainant stated that he did not receive a reaction from the Commission concerning the following six interviews held with: the Directorate-General for Budget ("DG Budget") on 15 May 2002, 3 July 2002 (two interviews), 15 March 2004 and 24 November 2004 and the Statistical Office of the European Communities ("Eurostat") on 19 November 2004.

The complainant added that he had also sent many e-mails and only rarely received a reaction. The complainant mentioned 20 e-mails, randomly selected, which he had sent to Commission officials between January 2005 and September 2006(5). On 29 October 2007, the complainant sent to the Ombudsman copies of 16 of the 20 e-mails that he had sent to the Commission in 2005 and 2006.

4.4 In his letter of further inquiries of 14 November 2007, the Ombudsman asked the Commission to comment on the feedback it gave the complainant on the six interviews and on the 20 e-mails concerned. In its reply, the Commission stated that, as a general rule, external candidates are informed of the follow-up of their candidature and of the results of their interviews and that it also occurs that the services give their replies orally. The Commission attached to its reply a series of written replies which were sent to the complainant, as well as the explanations that had been provided further to spontaneous applications by him. In view of these documents, the Commission considered that it had fulfilled its "devoir de sollicitude" towards the complainant.

4.5 In his additional observations, the complainant stated that the Commission had not reacted to the six interviews either in writing or orally. The complainant pointed out that the e-mails which the Commission attached concerned reactions to his information requests or applications, but not reactions to interviews as the Commission had tried to imply.

As regards the lack of reaction to his above-mentioned 20 e-mails, the complainant pointed out that, from the documents attached by the Commission to its reply, only two concerned these e-mails. The other documents were reactions to other e-mails from the complainant. The complainant calculated that the Commission had only reacted to approximately 10 % of his e-mails.

4.6 The Ombudsman notes that the complainant's allegation is two-fold and that, therefore, he has to examine two issues, namely, (i) the alleged lack of feedback on the interviews (including the corresponding claim that the complainant should be informed in writing of the general and specific reasons why he was not recruited) and (ii) the alleged failure to react or the allegedly late reaction to his requests for clarification, information or questions concerning potential vacancies.

4.7 As regards the alleged lack of feedback on the interviews, the Ombudsman notes that, initially, the complainant did not provide details concerning these interviews. In his observations, however, the complainant gave the dates of six interviews for which he allegedly received no feedback, namely, five interviews with DG Budget on 15 May 2002, 3 July 2002 (two interviews), 15 March 2004 and 24 November 2004 and one interview with Eurostat on 19 November 2004. The Ombudsman will therefore limit his examination to these six interviews.

4.8 The Ombudsman would first like to point out that the complainant did not specify what he meant by "feedback" on the interviews. It appears, however, that the complainant did not only expect to be informed that he would not be offered the posts concerned but that he also wished to know about the specific reasons for the Commission's decisions. It further appears that the complainant considered that this information should have been provided to him in writing. The Ombudsman notes that, in its reply to the further inquiries, the Commission indicated that candidates are always informed of the outcome of their candidature and of the results of their interviews. The Commission further indicated that this information is sometimes provided orally. The Ombudsman considers that there would appear, in principle, to be nothing to prevent the institutions from informing candidates, orally instead of in writing, of the reasons why their applications were not successful. However, the Ombudsman also considers that candidates are entitled to ask that this information be provided in writing. As regards the present case, it emerges from the submissions presented by the Commission that the latter takes the view that (i) feedback was given to the complainant as regards each of the interviews concerned and (ii) this feedback may have been given orally. The Ombudsman notes that the Commission has not been able to show that this was indeed the case. He also notes, however, that the information provided by the complainant does not allow him to conclude that no such feedback was given. It should be borne in mind that in cases where no feedback or only oral feedback was given by the Commission, the complainant clearly had the possibility to address a reminder to the Commission, asking the latter to provide written feedback on a specific interview. Such reminders could constitute elements of evidence on which the complainant could rely in order to prove his allegation that no feedback was given on certain interviews. However, no such evidence has been submitted to the Ombudsman in the present case. In these circumstances, the Ombudsman is of the opinion that no further inquiries into the complainant's allegation and corresponding claim are justified.

4.9 As regards the alleged failure to react or the allegedly late reaction to the complainant's requests for clarification, information or questions concerning potential vacancies, the Ombudsman notes that, in his initial complaint, the complainant did not provide details concerning this allegation. In his observations, however, the complainant referred to 20 e-mails, randomly selected, which he had sent between January 2005 and September 2006(6). In his observations, the complainant did not distinguish anymore between e-mails which allegedly had not been answered or e-mails which had been answered too late. The Ombudsman also notes that the complainant sent him copies of only 16 of the above 20 e-mails, pointing out that he could not find the other four e-mails anymore. The Ombudsman will therefore limit his inquiry into the present allegation to investigating whether the Commission replied to these 16 e-mails, that is, the above 20 e-mails with the exception of the three e-mails of 5 August 2005 and the e-mail of 25 September 2005. The Ombudsman notes that, in nearly all of these e-mails, the complainant either made spontaneous applications to be recruited in various DGs or reacted to vacancies which had been published by the Commission. Point 5 below will deal with the Commission's alleged failure to react to communications from the complainant other than the above-mentioned 16 e-mails.

4.10 The Ombudsman notes that the Commission attached to its first opinion five replies which were sent to the complainant either by letter or by e-mail, namely, on 6 October 2004, 21 November 2005, 7 December 2005, 18 May 2006 and 23 June 2006. However, these letters or e-mails are not replies to any of the above-mentioned 16 e-mails, but replies to other correspondence from the complainant. In its reply to the Ombudsman's further inquiries, the Commission referred to 11 written answers it sent to the complainant and which it attached to its reply. The Ombudsman notes, however, that only two of these replies constituted answers to the e-mails mentioned in the above list(7).

4.11 The Ombudsman notes that principles of good administration require that institutions reply to correspondence from citizens(8) and should be service-minded and courteous(9). On the basis of the documents that the Commission attached to its opinion and its reply to the Ombudsman's further inquiries, it appears that there is evidence of many answers which the Commission sent in reply to the complainant's correspondence. However, as regards the 16 e-mails which the complainant sent to the Commission between 7 January 2005 and 13 September 2006, it appears that the Commission replied to only two of them. The Commission did not provide evidence that the other e-mails had also been answered or put forward reasons explaining why the other e-mails did not need to be answered. Nor did the Commission apologise to the complainant in this regard. This constitutes an instance of maladministration, and the Ombudsman will make the critical remark below.

5 Alleged discrimination

5.1 The complainant alleged that there had been discrimination by the Commission in the recruitment procedure, namely, on the basis of age (the complainant was 48 years of age when he submitted the present complaint), language and nationality. The complainant referred to Article 5(3) of the Code in this context. With regard to this allegation, the complainant also observed that, because of certain contacts within the Commission, other candidates were in a privileged position to be recruited.

5.2 In its opinion, the Commission stated that, in 2001 and 2002, it organised several competitions for the A5/A4 career for which the competition notices required a minimum of 12 years of professional experience and that the laureates of these competitions were often between 40 and 50 years of age. The Commission pointed out that age does not play any role in the recruitment procedure. The Commission stated that it respects the principles of non-discrimination and geographical balance (Articles 1(d) and 27 of the Staff Regulations). The Commission also underlined that, as regards linguistic requirements, many post descriptions, more particularly those for high-level posts, including Principal Administrators, required knowledge of English and French. These requirements corresponded to the reality of a job in the Commission and in the other Community institutions.

5.3 In his observations, the complainant gave the example of a Finnish member of the Selection Board of the Open Competition and pointed out that a candidate on the reserve list had also Finnish nationality. This candidate was immediately recruited after the constitution of the reserve list in the Unit of the said Board member. After some time, that Board member became an adviser to the Acting Director-General and the Finnish laureate from the reserve list replaced him within the Unit.

5.4 The Ombudsman notes that the complainant's allegation of discrimination concerns three aspects, namely, alleged discrimination on the basis of i) age, ii) language and iii) nationality. As regards the alleged discrimination on the basis of age, the Ombudsman notes that the complainant did not provide any evidence to show or to suggest that he has been discriminated against on this basis. The only argument invoked by the complainant with this regard is that he was 48 years of age when he submitted the present complaint. However, the Ombudsman notes that, in its opinion, the Commission pointed out that the laureates for competitions for the A5/A4 career were often between the ages of 40 and 50 years. The Commission also pointed out that age does not play any role in the recruitment procedure.

5.5 As regards potential discrimination on the basis of either language or nationality, the complainant did not provide any evidence capable of supporting his allegation, either. The only concrete argument put forward in this context is that other candidates, because of certain contacts within the Commission, were in a privileged position to be recruited. The Ombudsman notes that, in his observations, the complainant gave the example of a laureate who had the same nationality as a member of the Selection Board and who was recruited in the Unit of the said Board member, thereby suggesting discrimination on basis of nationality. However, the Ombudsman considers that the fact that a laureate is recruited in the unit of a Board member who has the same nationality is perfectly possible and does not necessarily mean that there has been maladministration. There exists no rule according to which a laureate could not be recruited in a Unit in the event that he or she has the same nationality as the Head of Unit. The Ombudsman also notes that the complainant's additional argument that the said laureate subsequently replaced the Board member when the latter became an advisor to the Acting Director-General is not relevant with regard to the complainant's allegation. In the absence of any further evidence, the Ombudsman considers that the complainant has not established that there was discrimination in this case.

5.6 In view of the above, no instance of maladministration by the Commission is therefore found with regard to this aspect of the complaint.

6 Alleged failure of reaction to his candidatures

6.1 The complainant alleged that, in the majority of cases, he received no reaction when he brought his candidature to the attention of Commission officials (Human Resources managers, auditors and financial managers), which he had done about a hundred times, or when he applied for existing vacancies. The complainant referred to Article 12(1) of the Code in this regard.

6.2 In its opinion, the Commission stated that the replies it had given to the other allegations answered in general the questions raised by the present allegation. The Commission pointed out that, sometimes, Heads of Unit who have published notices of vacancies receive a high number of e-mails from interested laureates. However, notices of vacancies that are published on the basis of Article 29(1)(a) (and eventually (b)) of the Staff Regulations are not addressed to laureates of competitions. Candidatures from such laureates have to be considered as expressions of interest from citizens and the Commission has the obligation to reply systematically to all demands in order to inform the laureates that their application is not admissible in the framework of the procedure for filling the post. The Commission stated that it could only regret if one of its services had failed to comply with this obligation. The Commission however pointed out that the complainant had received reasoned replies from the recruitment service of the Directorate-General for Personnel and Administration ("DG ADMIN") and, more recently, also from the cabinet of Vice-President Kallas.

6.3 In his observations, the complainant stated that the Commission had either not reacted at all or reacted only after serious delays and referred to his observations concerning the third allegation. The complainant also stated that the replies from DG ADMIN and from Commissioner Kallas were superficial and did not react to the points he raised.

6.4 The Ombudsman notes that, in point 3 above, he dealt with the complainant's allegation that there had no reply or only a late reaction to 16 of his e-mails in which he had either made spontaneous job applications or had reacted to vacancies. In the framework of the present allegation, the Ombudsman will deal with the alleged failure to react to the complainant's communications other than these 16 e-mails. The Ombudsman notes in this respect that the complainant did not provide further details concerning the applications for which he had allegedly received no reaction. It appears that the complainant's allegation is worded in very general terms, namely, that, "in the majority of cases"(10), he received no reaction when he brought his candidature to the attention of Commission officials "about a hundred times"(11). In the absence of further details such as copies of the relevant applications, the Ombudsman will therefore examine the present allegation on the basis of the documents which are in the file.

6.5 The Ombudsman notes that the enclosures to the Commission's opinion, to the complainant's observations and to the Commission's reply to the Ombudsman's further inquiries contain copies of several replies sent by the Commission in reaction to some of the job applications made by the complainant:

• On 6 October 2004, DG ADMIN replied to an e-mail of the complainant providing him with various explanations concerning the recruitment procedure.
• On 11 October 2004, a Commission official from the IAS replied to the complainant with regard to his potential recruitment.
• On 7 December 2005, Directorate-General for Taxation and Customs Union ("DG TAXUD") sent a letter in reply to the complainant's e-mail of 26 November 2005, in which the complainant had asked for the exact and concrete reasons as to why he had not been appointed to the post.
• On 8 March 2006, the Directorate-General for Employment ("DG EMPL") sent an e-mail to the complainant thanking him for his application for a post, and informing him that there had been a large interest in this post and that many applications had been received which matched more closely the particular requirements.
• On 10 March 2006, the Directorate-General for Research ("DG RTD") replied to the complainant's application of 5 March 2006 for a post in DG RTD.
• On 18 May 2006, DG ADMIN replied to the complainant's letter of 20 March 2006.
• On 23 June 2006, the Head of cabinet of Commissioner Kallas replied to the complainant's letter of 17 April 2006 addressed to Commissioner Kroes, in which the complainant complained that he had not been recruited yet.
• Apart from the above reactions, it appears from the enclosures to its reply to the Ombudsman's further inquiries that the Commission sent further answers to the complainant on 8 March and 9 June 2004, on 7 and 12 January, 13 April, 25 May, 28 June and 29 November 2005, on 8 March and 29 September 2006, and on 31 March 2007, in reply to applications for posts.

6.6 The Ombudsman notes from the above that the Commission did send several replies to the complainant in reaction to applications for posts he had made. Given that, apart from the 16 e-mails which are the subject of the third allegation above, the complainant failed to provide details concerning the other applications which he had submitted, it is not possible for the Ombudsman to verify the complainant's allegation that he received no reaction in so far as these other applications are concerned. No maladministration is therefore found as regards this aspect of the complaint.

7 As regards the alleged maladministration concerning a post to be filled in DG TAXUD

7.1 The complainant alleged that, after an interview on 25 October 2005 with officials from DG TAXUD in connection with the post advertised in vacancy notice COM/2005/3279 (job ID 57006), he received an unreasoned negative reply. In that reply, the officials explained to the complainant that he was not recruited because he did not know French. However, the vacancy notice did not mention that knowledge of French was a requirement and, further, no mention was made of this requirement in the course of the interview. The complainant referred to Articles 10(2) and 20(2) of the Code in this context.

7.2 In its opinion, the Commission stated that, by letter of 21 November 2005, the complainant was informed that DG TAXUD had selected another candidate for the said post. By e-mail of 26 November 2005, the complainant asked for "the exact and concrete motives you have for not appointing me". The Head of Unit TAXUD/01 replied by letter of 7 December 2005. It appears from this letter that the complainant was not selected because, in the Head of Unit's opinion, there was a candidate who was better qualified and corresponded more to the profile of the vacancy notice, and because, moreover, the description of the post indicated clearly that a good knowledge of French was required.

7.3 In his observations, the complainant observed that, contrary to what the Commission had stated, the vacancy notice did not mention that a good knowledge of French was required. The complainant also pointed out that he applied again on 22 December 2005 for another post in DG TAXUD, namely, that of internal auditor. DG TAXUD did not invite the complainant for an interview, although Mr K. of DG TAXUD had been of the opinion that the complainant would be more appropriate for the post of internal auditor. The Commission's statement, in its reply of June 2006, that "for the moment, there was no vacant post which corresponded to the complainant's profile" was therefore to be considered as a lie and inappropriate.

7.4 In his letter of further inquiries of 14 November 2007, the Ombudsman asked the Commission for further clarifications concerning the alleged requirement that candidates needed to master French for the relevant post. In its reply, the Commission drew the Ombudsman's attention to a link in vacancy notice COM/2005/3279 which led directly to the job description for the said post. The latter mentioned that knowledge of English and French was required.

7.5 In his additional observations, the complainant reiterated that it remained a fact that, in the vacancy notice, knowledge of French was not mentioned as a recruitment condition.

7.6 As regards the complainant's allegation that he received an unreasoned reply from DG TAXUD further to his interview of 25 October 2005, the Ombudsman notes that DG TAXUD's reply of 21 November 2005 was indeed short. In effect, that reply merely informed the complainant that someone else had been recruited for the post and thanked him for his interest. It appears however that, further to an e-mail of 26 November 2005, in which the complainant asked for the exact and concrete reasons why he was not recruited, DG TAXUD sent an additional letter on 7 December 2005 in which it explained in more detail the reasons why he had not been recruited. It explained that the analysis of the different candidates who had been interviewed led to the conclusion that the complainant was not the best suited candidate for the particular post, that the complainant's presentation compared to other candidates was less convincing and that his long specialisation in the audit function was more appropriate for a relatively senior post in the Commission. The reply also indicated that the relevant job notice indicated a need to be able to work in French and that the complainant did not compare favourably with the candidate who was chosen. The reply finished by stating that these comments in no way called into question the complainant's suitability for any given post in the Commission. Considering these additional explanations, the Ombudsman finds no instance of maladministration by the Commission with regard to the complainant's allegation that he received an unreasoned reply.

7.7 With regard to the allegation concerning the condition requiring knowledge of French, the Ombudsman notes that the vacancy notice concerned in the present case was notice COM/2005/3279 in TAXUD.01.FIN (Job ID: 57006) published on 29 September 2005. This notice was very short as regards the professional requirements. It merely stated that

"[t]his is a challenging job requiring a motivated person with sound judgement and an ability to draft clearly. A good background in financial analysis, audit, and control or a related discipline are required. A capacity to deal with IT reporting systems is needed as it a sufficient knowledge of the essential elements of internal control".

The notice did not mention any language requirements. However, the notice contained a link to the job description form which mentioned the requirements concerning formal education, experience, training and languages. As regards languages, the job description form mentioned, for both English and French, "Understanding, Speaking, Reading, Writing: Good(12)". In these circumstances, it appears clear that knowledge of French was indeed required to fill the relevant post.

7.8 The complainant has stressed that this requirement was not mentioned in the notice of vacancy. It is true that, according to constant case-law, the essential purpose of a vacancy notice is to give those interested the most accurate information possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it(13). However, regard also needs to be had to the fact that vacancy notices which are published by the Commission on the basis of Article 29(1)(a) of the Staff Regulations(14) are addressed to Commission staff members and not to the outside world. It is thus essential that the original recipients were able to understand which requirements needed to be fulfilled by candidates wishing to be appointed to the relevant post. In the Ombudsman's view, however, it seems clear that Commission staff members would have understood that the notice had to be read together with the job description and that there would most likely be language requirements. By printing out the "job description", applicants were clearly in a position to be informed about the language requirements for the post in question, and thus about the condition that knowledge of both English and French were required.

7.9 No instance of maladministration is therefore found with regard to this aspect of the case.

7.10 Besides, and for the sake of completeness, the Ombudsman notes that the rejection of the complainant's candidature was also based on another reason, namely, that another candidate was better qualified.

8 Alleged failure to respect legitimate and reasonable expectations

8.1 The complainant alleged that his legitimate expectations were not respected as, on 7 October 2005, he received an e-mail from DG RTD announcing an interview which however did not take place. Similarly, on 16 February 2006, the complainant received an e-mail from DG EMPL announcing an interview, but on 8 March 2006 he was informed, without any explanation, that he was no longer invited for an interview. The complainant referred in this context to Article 10(2) of the Code in this context.

8.2 In its opinion, the Commission st ated that it was unable to find the e-mail from DG RTD to which the complainant had referred, and that the complainant should be asked to provide it with a copy of this e-mail.

8.3 In his observations, the complainant attached the two e-mails of 7 October 2005 and 16 February 2006 which he had received from DG RTD and DG EMPL respectively and which, according to the complainant, clearly showed that expectations had been raised. In his letter of further inquiries, the Ombudsman asked the Commission to explain why the interviews which had been announced to the complainant were not held and to specify whether and how the complainant was informed that the proposed interviews would not take place after all.

8.4 In its reply, the Commission noted that two of its officials had indeed confirmed to the complainant that he would certainly be invited for an interview. The Commission recalled however that only the Appointing Authority is entitled to invite laureates for formal interviews. It added that it could only regret that the information set out in the two e-mails of 7 October 2005 and 16 February 2006 might have raised expectations on the part of the complainant and that the DGs in question did not ask the Appointing Authority to invite the complainant. The Commission however pointed out that DG EMPL sent an e-mail to the complainant on 8 March 2006 in which it thanked him for his interest and informed him that another candidate had finally been chosen.

8.5 In his additional observations, the complainant maintained his view that expectations had been raised and that no specific explanations had been provided by the Commission as to why these expectations had not been fulfilled.

8.6 Principles of good administrative behaviour require that the institutions respect the legitimate and reasonable expectations that members of the public have, on the basis of how the institution has acted in the past(15). The same principles require that the institutions act courteously(16). The complainant has referred to this principle on several occasions in his complaint.

8.7 The Ombudsman first notes that, in the e-mail of 7 October 2005, an official from DG RTD informed the complainant that "[i]f you are still available, I would like to propose to soon foresee a discussion at our premises in Brussels. At [sic] this occasion you could further explain your candidature. From our side we could then discuss eventual future possibilities. In case of interest, please confirm to me"(17). The complainant replied on the same day stating that he was still interested and that he was already coming for an interview to Brussels and that maybe an interview could be arranged for the same day. The complainant mentioned various dates in October and November 2005 which he had transmitted to DG ADMIN. Second, in the e-mail of 16 February 2006, the Deputy Head of Unit of DG EMPL/F3 informed the complainant that "Mr [B.], Head of Unit, and myself, have found your related experience quite interesting and we will certainly contact you shortly to arrange for an interview". In this e-mail, the complainant was also asked to confirm that he was a laureate and to indicate which competition he was a laureate of. The complainant answered on the same day that he was a laureate of competition COM/A/5/01.

8.8 The Ombudsman notes that, on the basis of the above e-mails, it appears that DG RTD and DG EMPL promised that the complainant would be invited for an interview and that they would contact him in that regard. The above statements could be considered as not giving rise to a legitimate expectation that an invitation to an interview would indeed be made. However, these statements, especially the second one, clearly gave rise to the expectation that the Directorates-General concerned would soon contact the complainant again concerning these interviews. The Ombudsman therefore considers that, at the very least, the failure of these DGs to contact the complainant again concerning the interviews infringed the complainant's legitimate and reasonable expectations. This failure also constituted a lack of courtesy. It appears that the Commission wished to argue that DG EMPL's e-mail of 8 March 2006 should be considered as relevant here. However, this e-mail contains no reference to its earlier e-mail of 16 February 2006 or an explanation as to why the interview which was announced in that e-mail was not held. On the basis of the above considerations, the Ombudsman considers that the Commission's failure to contact the complainant again concerning the interviews in question infringed the latter's legitimate and reasonable expectations and also constituted a lack of courtesy. This failure thus constitutes an instance of maladministration. The Ombudsman will therefore make the critical remark below.

9 Claim to be offered a post

9.1 The complainant claimed that the Commission should make efforts in the short term to offer him a post.

9.2 In its opinion, the Commission stated that it was impossible for it to offer a post to the complainant in the near future. The complainant was on a reserve list, and it followed from Article 29 of the Staff Regulations that having recourse to reserve lists is subsidiary to internal and inter-institutional mobility. The Commission also underlined that the complainant had had several occasions to prove his qualities, but pointed out that those services had requested the recruitment of other persons. The Commission considered that this series of events meant that the complainant had never demonstrated, during a recruitment interview in the Commission, that he possessed the required qualifications to be recruited to the posts for which he had applied.

9.3 The Ombudsman notes that posts have to be filled in conformity with the Staff Regulations, that is, they have to be published and filled after having examined the merits of the candidates. Since the complainant had not shown that the Commission acted wrongly when rejecting his applications, after having compared the merits of the candidates involved, his claim to be offered a post must necessarily fail.

10 Other issues

10.1 In his observations, the complainant argued that the replies from DG ADMIN and from Commissioner Kallas were superficial and did not react to the points he had raised. The Ombudsman notes that this argument concerns the two replies from DG ADMIN of 6 October 2004 and 18 May 2006 and the reply from the cabinet of Commissioner Kallas of 23 June 2006. The Ombudsman is not convinced that these replies were superficial. He notes that these replies explained in detail to the complainant the various aspects of the recruitment procedure and dealt with the issue why the complainant had not yet been recruited. The complainant did not provide copies of the letters to which the above-mentioned letters of 6 October 2004, 18 May 2006 and 23 June 2006 replied. Nor did the complainant indicate which of the points he had raised in his letters had not been addressed in these replies. In these circumstances, the Ombudsman takes the view that it is not necessary for him to take this issue up for an inquiry.

10.2 In his observations, the complainant also argued that the Commission's reply of June 2006 that "for the moment, there was no vacant post which corresponded to the complainant's profile" had to be considered as a lie and inappropriate. In this regard, the Ombudsman would like to point out that the complainant seems to refer to an application he made in December 2005, whereas the Commission's above statement would appear to concern the post in June 2006. The Ombudsman notes that the complainant did not provide evidence that, at that time, that is, in June 2006, posts corresponding to his profile would have been vacant. The fact that an official from DG TAXUD seems to have indicated to the complainant that he would be more appropriate for an internal auditor post does not mean that such a function was vacant at the time. In any event, the complainant has not put forward any evidence to support his argument that this statement was a lie. In these circumstances, the Ombudsman takes the view that it is not necessary for him to take this issue up for an inquiry.

10.3 As regards the fact that the Commission pointed out that it was astonished that the complainant had referred to a vacancy notice which was addressed to Commission staff, the Ombudsman notes that the Commission could be understood as suggesting that the complainant had acted improperly. However, the Commission has not argued or demonstrated that these notices came to the complainant's attention due to his improper behaviour or that he should not have had access to them. Article 4 of the Staff Regulations provides that vacant posts are to be communicated to the staff of the institution concerned. It is however not excluded that laureates from open competitions obtain knowledge of such vacancies and make applications as a result. As the Commission itself pointed out, in case a post cannot be filled internally or by transfer from another institution, it has the possibility to have recourse to laureates from open competitions, which implies that the Commission can receive applications from them further to the publication of vacancy notices. The Commission also stated that candidatures from such laureates have to be considered as expressions of interest from citizens and the Commission has the obligation to reply systematically to all demands. On the basis of the above considerations, the Ombudsman considers that the Commission's statement that it was astonished that the complainant had referred to a vacancy notice was clearly inappropriate, especially considering that the Commission had sent substantive replies to the complainant on 21 November and 7 December 2005.

10.4 In his observations, the complainant stated that the last paragraph in the Commission's opinion in which the Commission raised questions concerning his qualities was irritating, inappropriate and insulting. In his letter of further inquiries, the Ombudsman asked the Commission to comment on this. In its reply to the further inquiries, the Commission stated that its initial opinion did not raise doubts about the professional qualities of the complainant, but only concerned the result of the recruitment interviews which the complainant had had with several services, and the complainant's specific qualifications for the posts in question. As regards the said paragraph in the Commission's opinion(18), the Ombudsman understands that this paragraph could indeed reasonably be understood by the complainant as raising doubts concerning his qualifications. It is therefore understandable that the complainant considered this remark to be irritating and insulting towards him. However, in its reply to the further inquiries, the Commission clarified that it did not intend to raise doubts concerning the complainant's professional qualifications, but that its comments concerned exclusively the specific qualifications required for certain posts. On the basis of these additional clarifications, the Ombudsman considers that no further action is needed on his part as regards this issue.

11 Conclusion

On the basis of the Ombudsman's inquiries into points 4 and 8 above, it is necessary to make the following critical remarks:

Principles of good administration require that institutions reply to correspondence from citizens(19) and should be service-minded and courteous(20). As regards the 16 e-mails which the complainant sent to the Commission between 7 January 2005 and 13 September 2006, it appears that the Commission replied to only two of them. The Commission did not provide evidence that the other e-mails had also been answered or put forward reasons explaining why the other e-mails did not need to be answered. Nor did the Commission apologise to the complainant. This constitutes an instance of maladministration.

Principles of good administrative behaviour require that the institutions respect the legitimate and reasonable expectations that members of the public have in light of how the institution has acted in the past(21). The same principles require that the institutions act courteously(22). On the basis of the Commission's e-mails of 7 October 2005 and 16 February 2006, it appears that DG RTD and DG EMPL promised that the complainant would be invited for an interview and that they would contact him again in that regard. The Ombudsman considers that the Commission's failure to do so infringed the complainant's legitimate and reasonable expectations and also constituted a lack of courtesy. This failure thus constitutes an instance of maladministration.

Given that these aspects of the case concerns procedures relating to specific events in the past, 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,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 C 105 A, p. 13.

(2) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).

(3) The complainant sent the 20 e-mails on 7 (2 e-mails), 11 and 31 January 2005, 22 June 2005 (3 e-mails), 5 August 2005 (3 e-mails), 25 (3 e-mails) and 28 September 2005, 23 February 2006, 28 July 2006 (2 e-mails) and 11 (2 e-mails) and 13 September 2006.

(4) The European Code of Good Administrative Behaviour is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).

(5) See footnote 3.

(6) See footnote 3.

(7) The Ombudsman only identified the Commission's reply of 29 September 2006 as constituting an answer to the complainant's e-mail of 11 September 2006. However, the complainant himself indicated, in his further observations, that two of the 16 e-mails had been answered.

(8) Article 14(1) of the European Code of Good Administrative Behaviour. The Commission's own Code of Good Administrative Behaviour (OJ 2000 L 308, p. 26) provides under point 4 (Dealing with inquiries) that replies are to be sent within 15 working days.

(9) Article 12(1) of the European Code of Good Administrative Behaviour.

(10) In Dutch: "In het overgrote deel van de gevallen".

(11) In Dutch: "in totaal enkele honderden malen".

(12) The Ombudsman notes that the job description contained similar descriptions with regard to the other conditions, for instance "ability to understand and be understood: Good; ability to communicate in meetings: Good; Diplomatic skills: Good; drafting skills: Good".

(13) Case T-30/04 Sena v AESA [2005] ECR-SC I-A-113 and II-519.

(14) Although not explicitly mentioned, the present vacancy notice appeared to be addressed only to Commission staff and thus to be based on Article 29(a) of the Staff Regulations.

(15) Article 10(2) of the European Code of Good Administrative Behaviour.

(16) Article 12(1) of the European Code of Good Administrative Behaviour.

(17) In Dutch "Indien u nog beschikbaar bent zou ik u willen voorstellen om binnenkort een bespreking te voorzien bij ons in Brussel. Bij die gelegenheid zou u uw kandidatuur nader kunnen toelichten. Van onze zijde kunnen we dan eventuele toekomstige mogelijkheden bespreken. Indien interesse, gelieve u me dit te bevestigen."

(18) In the original French: "Par ailleurs, il y a lieu de constater que le plaignant a eu plusieurs occasions pour prouver ses qualités. Cependant, force est de constater que ces services ont demandé le recrutement d'autres personnes, ce qui signifie que le plaignant, lors d'un entretien d'embauche à la Commission, n'a jamais démontré qu'il possède les qualifications nécessaires pour être recruté sur les postes pour lesquels il avait postulé".

(19) Article 14(1) of the European Code of Good Administrative Behaviour. The Commission's own Code of Good Administrative Behaviour provides under point 4 (Dealing with inquiries) that replies are to be sent within 15 working days.

(20) Article 12(1) of the European Code of Good Administrative Behaviour.

(21) Article 10(2) of the European Code of Good Administrative Behaviour.

(22) Article 12(1) of the European Code of Good Administrative Behaviour.