The background to the complaint

1. The present case concerns the European Personnel Selection Office's (EPSO) policy regarding the booking of computer-based admission tests in open competitions.

2. The complainant is an Italian citizen who submitted an application to take part in Open Competition EPSO/AD/207/11-AD7 concerning the recruitment of administrators in several fields.[1] After having validated his application, the complainant received, in his EPSO account, an invitation to book his Computer Based Test (CBT). The invitation allowed the complainant to choose between several possible dates and venues, and stated that a choice had to be made within a period of six days. The invitation also made it clear that the application would be considered withdrawn if the complainant did not book the CBT within the given deadline.

3. On 12 April 2011, several hours after the booking period for his CBT had expired, the complainant contacted EPSO and explained that he had not been able to connect to his EPSO account on the previous two days. He therefore asked EPSO to allow him to book the CBT at that time.

4. On 13 April 2011, EPSO replied to the complainant and informed him that it could not accept his request, since the booking period for his CBT had already expired. In the exchange of correspondence that followed, the complainant insisted on being given the possibility of booking the CBT or of submitting a new application for Open Competition EPSO/AD/207/11-AD7. He pointed out that, according to the Notice of Competition, the deadline for submitting applications expired on 14 April 2011. Moreover, EPSO had decided to extend that deadline by six hours because of problems with the EPSO account system. However, EPSO confirmed its original position in its e-mails of 14 and 29 April 2011.

5. On 1 May 2011, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

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

Allegation

EPSO unfairly excluded the complainant from the competition.

Supporting arguments:

1. EPSO failed (i) properly to take into account the problems faced by the complainant when trying to book his CBT test and (ii) adequately to deal with his subsequent e-mails to EPSO.

2. EPSO set the deadline for booking the CBT test before the deadline for applying to Open competition EPSO/AD/207/11-AD7.

3. Although EPSO, on 14 April 2011, extended the registration deadline by six hours, it did not grant him an extension to book a CBT test.

Claim

EPSO should allow him to participate in the competition.

The inquiry

7. On 16 June 2011, the Ombudsman requested EPSO to submit an opinion on the complainant's allegation and claim by 30 September 2011. EPSO's opinion was forwarded to the complainant with an invitation to make observations. The complainant did so on 15 August 2011.

The Ombudsman's analysis and conclusions

A. Allegation that EPSO unfairly excluded the complainant from the competition and related claim

Arguments presented to the Ombudsman

8. In his complaint to the Ombudsman, the complainant alleged that EPSO unfairly excluded him from Open Competition EPSO/AD/207/11-AD7. In support of his allegation, the complainant put forward a number of arguments that are summarised in paragraph 6 above.

9. In its opinion, EPSO pointed out that the complainant connected to his EPSO account only two times, and on both occasions, only after the booking period of six days had expired. Thus, the complainant failed to respect Point 3.1 of the Guide to Open Competitions (the 'Guide'), which requires candidates to check their EPSO account at least twice a week. EPSO also emphasised that, during the six-day booking period, no connection problem was registered and that 90.4% of candidates managed to book their CBT during the same period.

10. EPSO also argued that it had promptly replied to all the complainant's requests but unfortunately could not accept them. According to EPSO, the complainant confused the deadline for registering for the competition - which, according to the Notice of Competition, expired on 14 April 2012 - with the deadline for booking the CBT - which varied for each candidate and, for the complainant, expired on 12 April 2012. According to the Guide, candidates could neither register more than one application for the same competition nor modify an application once registered. Therefore, it was not possible to allow the complainant to submit a new application, even if the deadline for registering for the competition had not yet expired. As for the decision to extend the registration period for the competition by six hours, EPSO stressed that this decision was taken to correct a problem caused by the EPSO website. The problem, however, did not concern the complainant, who, at that time, had already registered his application, but missed the deadline for booking his CBT.

11. In his observations, the complainant argued that the deadline for registering for the competition should not such as to make it possible to confuse it with any other date, such as the date for booking CBTs. Otherwise the principle of equality of treatment of candidates would be irreparably breached. The complainant pointed out that the only date mentioned in the Notice of Competition was 14 April 2012 and that he had asked EPSO to allow him to register a new application before that date. According to the complainant, such a request could not be considered to be either a request to modify his original application or a double registration, since the original application had already been annulled by EPSO.

12. The complainant also underlined that the grounds for disqualification linked to the application process are exhaustively enumerated in the Guide and do not include failure to book the CBT within the given deadline.

The Ombudsman's assessment

13. The Ombudsman points out that EPSO's new policy regarding the booking of CBTs has already been the subject of one of his inquiries, that is to say, his own-initiative inquiry OI/9/2010/RT. In that case, the Ombudsman addressed several issues raised by the new procedure, including the booking procedure for CBTs.

14. In the decision closing that inquiry, the Ombudsman considered that the new procedure which foresees that the period for the booking of CBTs overlaps with the registration period for the competition is a proportionate and necessary measure to achieve the general objective of reducing the duration of the whole selection procedure.

15. In particular, the Ombudsman considered satisfactory the means adopted by EPSO to inform the candidates of the procedure for booking CBTs , which include: (i) an indication in the notice of competition that candidates will be invited to sit CBTs if they have reserved a date for the tests by the closing date indicated by EPSO; (ii) an instruction to candidates in the Guide to consult their EPSO account at least twice a week (Point 3.1 of the Guide); and, finally, (iii) an individual communication sent to each candidate's EPSO account which indicates the period for booking CBTs and clearly states that if a candidate misses the deadline, the candidate's application will be considered withdrawn, and his or her participation to the competition will be terminated.

16. The Ombudsman points out that, in the present case, the complainant was provided with the information referred to in his decision closing his own-initiative inquiry OI/9/2010/RT. He cannot therefore agree with the complainant's second supporting argument, according to which it was unfair for EPSO to set the deadline for booking the CBT before the deadline for applying to the Open Competition. Similarly, since the complainant was properly informed, the Ombudsman does not agree that the procedure adopted by EPSO could lead to confusion between the deadline for registering for the competition and the deadline for booking the CBTs. Nor does the Ombudsman consider that the only relevant date in both regards should be the deadline for registration mentioned in the Notice of Competition.

17. The complainant, however, also asserted that EPSO failed properly to take into account the problems he faced when trying to book his CBT test and to deal adequately with his subsequent e-mails.

18. The Ombudsman recalls that, in the decision closing his own-initiative inquiry OI/9/2010/RT, he made the following further remark: "EPSO could reflect on the situation of candidates who, although they have been properly informed of the booking period, are not able to access the internet during that short period and thus cannot book their CBTs (for instance, because of an adequately justified illness). These candidates should not be penalised because of such exceptional and objective circumstances." In line with his further remark, the Ombudsman stresses that the principles of good administration and, in particular, the principle of non-discrimination, require that EPSO take into consideration the situation of candidates who, because of exceptional and objective circumstances, are not able to access the internet during the booking period of the CBT.

19. The Ombudsman notes that the complainant did not provide specific reasons to show that he had not been able to access the internet during the booking period; nor did he provide any evidence in this regard. In fact, in his first message to EPSO, he only stated that, during the last two days of the booking period, it had been impossible for him to connect to the internet. In this regard, it should be noted that the booking period was six days long. Nor did he provide further information on this matter in his subsequent exchange of correspondence with EPSO or in his observations on EPSO's opinion.

20. In the light of these circumstances, the Ombudsman concludes that the complainant failed to show the existence of exceptional and objective circumstances that EPSO should have taken into consideration before excluding him from the competition.

21. The Ombudsman acknowledges that, in the present case, EPSO promptly replied to the complainant's requests. In line with the principles of good administration which require that EU institutions adopt a pro-active approach towards citizens' requests, and bearing in mind the Ombudsman's further remark in case OI/9/2010/RT, EPSO could, in the future, pro-actively consider the specific case of candidates who state that they have been unable to book their CBTs, for instance, by asking them to provide evidence of the alleged impossibility to access the internet. The Ombudsman will make a further remark below in this respect.

22. As to the complainant's arguments that EPSO breached the principle of equal treatment by extending the registration deadline by six hours on 14 April 2011 while not granting him a similar extension, the Ombudsman points out that the decision to extend the registration deadline was taken to remedy technical problems caused by EPSO's website. The situation is therefore objectively different from the complainant's problem, since in the present case no connection problems were registered. In any event, it should be noted that the two deadlines concern two clearly different stages of the procedure, namely, the registration for the competition, on the one hand, and the booking of the CBT, on the other.

23. Finally, the Ombudsman notes that, in his observations, the complainant argued that the grounds for disqualification linked to the application process are those strictly listed in the Guide and do not include the failure to book the CBT within the given deadline.

24. The Ombudsman stresses the importance that sanctions as prejudicial to candidates as the exclusion from a competition be expressly provided for and clearly made known to all those concerned. In the present case, the Ombudsman notes that Point 2.1.4 of the Guide sets out the grounds for disqualification "linked to the application process". These grounds appear to be clearly related to a particular phase of the procedure, that is, the submission of candidates' applications, but not to subsequent stages of the competition. The Ombudsman also considers that there is no indication that the list should be considered exhaustive.

25. In any event, the Ombudsman notes that it is not in dispute that the complainant was adequately informed of the consequences of not booking his CBT on time by a communication received in his EPSO account (see paragraphs 15 and 16 above). In the light of the above, the Ombudsman does not consider the complainant's argument convincing. It would however be useful if EPSO could, in the future, consider specifying in the Guide itself, the consequences for candidates who do not book their CBTs within the deadline given to them. The Ombudsman will make a further remark below in this respect.

26. In his observations, the complainant also argued that his request to be allowed to register a new application following the expiry of his booking period should have been accepted by EPSO. According to the complainant, such a request could not be considered to be a request to modify his original application or a double registration, since the original application had already been annulled. In this regard, the Ombudsman points out that, according to the invitation letter, an application is considered to be withdrawn if a candidate does not book the CBT within the booking period. As a consequence the complainant's view that his application, which EPSO considered withdrawn, should instead be considered annulled, thereby enabling him to submit a fresh application, is not convincing.

27. The Ombudsman notes that a withdrawn application cannot be considered to be an annulled one and therefore cannot escape the prohibition on submitting multiple applications, set out in the Notice of Competition and in the Guide.

28. Given that the complainant's allegation cannot be sustained, his claim cannot succeed.

B. Conclusions

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

There has been no maladministration in EPSO's activities.

The complainant and EPSO will be informed of this decision.

Further remarks

EPSO could, in the future, pro-actively consider the specific situation of candidates who state that they have been unable to book their CBTs, for instance, by asking them to provide evidence of the alleged impossibility to access the internet.

EPSO could, in the future, consider specifying, in the Guide to Open Competitions, the consequences for candidates who do not book their CBTs within the deadline set for them to do so.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 11 December 2012

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[1] Notice of Competition EPSO/AD/207/11 (AD7), OJ 2011 C 82A1 p.1.