Candidates, as well as interested parties in the academic and professional worlds are looking with increasing astonishment at the growing confusion in the selection and appointment procedures organized by EPSO and our institution.
Many of you have supported the efforts of R&D denouncing the limits of ongoing internal competitions, taking into account the “Glantenay” judgment y as well as the total opacity of the call for expressions of interest launched this year for the recruitment of contractual agents, now called “CEI for the well-connected”.
All this is at a time when the services are invaded by “parachutists”. We will come back on this file very shortly.
With “Pachtitis 2” EPSO competitions move a step further!
AD/177/10, AD/178/10 and AD/179/10: the «LEGO-BRICO» procedure !
With these competitions, we are undoubtedly facing a procedure that will be remembered for the efforts deployed to collect all the pieces and put together a solution after an avalanche of cases.
First of all, remember that, to take into account the Pachtitis case, the renewal of such competitions is only open to candidates excluded in the first competition, on the basis of an EPSO commitment resulting in a corrigendum to the notice of competition at that time- a notice that has just been declared illegal by a new “Italy judgment”!.
To understand the magnitude of the problem it is important to remember the steps of this saga.
Summary of the facts
15 June 2010 – PACHTITIS CASE
By its judgment F-35/08, the Civil Service Tribunal (CST) accepted the appeal lodged by a candidate. It cancelled his exclusion from the competition and concluded that, having regard to Annex III of the Staff Regulations and as R&D has always maintained it was up to the competition selection board only and not to EPSO to determine the content of the tests and the correction thereof, including tests comprising multiple-choice questions (CBTs).
Faced with countless appeals in 2010, EPSO gave assurances to the thousands of candidates who did not pass the pre-selection tests saying that, if the judgment was upheld on appeal, they would be invited to a new competition for the same profiles.
14 December 2011 – The Court again rejected the Commission’s arguments and confirmed the Pachtitis judgment (1).
27 November 2012 – Case C-566/10 P: Italy c / Commission
For three notices of competition published by EPSO in 2007, Italy has challenged, inter alia, the arbitrary limitation on the choice of the second language to three languages only for the participation in the competitions. The Court, givings its judgment on appeal, upheld the Italian objections, noting in particular the absence of clear, objective and predictable criteria that limit the choice of a second language as well as of any justification of the choice of the three languages chosesen.
March 2013 – In the context of the repetition of the competition
EPSO published a corrigendum (2) to competitions AD/177/10, AD/178/10 and AD/179/10. The original notices of competition were kept unchanged, except for some changes introduced by these corrigenda. The competitions kept the same numbers as in 2010. These corrigenda aimed, essentially, at clarifying the reasons for limiting the choice to three of the languages that might be the second language of the competition. It was assumed that this was necessary and sufficient to enforce the “Italy” Court judgment of 27.11.2012 about the linguistic aspects of the competition.
Spring 2013 – Candidates were invited to pass the pre-selection tests again
Candidates who did not pass the pre-selection tests for the AD/177/10, AD178/10 and AD/179/10 competitions organized in 2010 and subject to the judgment (if they were still interested) were invited to pass the pre-selection tests again, and this in their second language.
16 October 2013 (3) – The CST cancels the notice of competition
Because it required candidates to pass the pre-selection tests in their second language. The same principles apply to AD/178/10 and AD/179/10 competitions.
However, given that the pre-selection tests for these “repeat competitions” all took place in the second language chosen by the candidates, two questions arise:
1 First, the form, how and on what basis can a competition take place for which the respective notice has been cancelled and only the corrigendum, which contains a limited number of aspects relating to the organization of the competition itself, including the language arrangements for the tests that meanwhile have been declared illegal by the CST, remains?
2 Second, on the substance, the CST disallows the limitation to only three languages for the pre-selection tests and the Assessment Centre (AC). Like the judgment “Italy”, on the choice of a second language, the Court emphasized that:
“a difference in treatment on the grounds of language must also observe the principle of proportionality, that is to say, it must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it” and “in accordance with the first paragraph of Article 27 of the Staff Regulations, the recruitment of officials is to be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. Since that objective can best be achieved when the candidates are allowed to sit the selection tests in their mother tongue or in the second language of which they think they have the best command, it is, in that regard, for those institutions to weigh the legitimate objective justifying the limitation of the number of languages of the competition against the objective of identifying the most competent candidates“;
“It is therefore a matter for the institutions to weigh the legitimate objective justifying the limitation of the number of languages of the competitions against the opportunities for recruited officials of learning… the languages necessary in the interest of the service.”
And, in the conclusion to its reasoning,
The judgment annuls the notice of competition which required candidates to pass the pre-selection tests in their second language … exactly the regime imposed on candidates through the repetition of these competitions currently taking place.
This despite the fact that in all competitions that followed competitions AD/177/10 to AD/179/10, CBT have always been held in the first language of the candidate, not the second.
We must not forget that this is an essential aspect, insofar as the possibility for candidates to pass the CBT in their main language was a major step forward that has always been upheld by R&D and that the new EPSO Directorate had the merit to implement upon taking office, whereas this request had previously been rejected as being impossible on both technical and political grounds
Do not forget that once EPSO announced the rules adopted for these “repeat competitions” and the corrective measures taken to finally put the selection board in the heart of the proceedings, R&D and all the staff representatives of all institutions asked to have the opinion of the Legal Service which EPSO invoked as the base of the measures adopted.
In the light of the refusal to accept their request, the Staff Committees of the institutions suspended their participation in selection boards until the requested Opinion is sought.
For R&D, it has always been essential:
- For all competitions organized:
To ensure that, in the utmost respect of Annex III of the staff regulation, the selection board is truly responsible for each stage of the proceedings and that EPSO plays its role namely that of ensuring “tasks essentially organizational”;
- For the “repeat competitions”:
To protect the rights of candidates wrongly penalized during the first proceedings allowing them to take advantage of favourable developments, introduced in the meantime in all the other competitions. This is in the interests of equity and also because it was either negotiated by the staff representative or imposed by law .
This is in the interests of elementary fairness in respect of candidates who’ve already suffered the damage caused by the first Pachtitis judgment.
The Legal Service has recognized that in these “repeat competitions” modifications are possible in relation to the initial competition, provided they are favourable to candidates. Thus, the case study is no longer held for each candidate, the day of the assessment center (AC) as in the first competition, but all eligible candidates attend this test on the same day and are then invited to the AC.
Undoubtedly, on the basis of the judgment of the CST of 16.10.2013, passing the CBTs in the mother tongue – as is the case now finally for all competitions – would have met the same principle of fairness!
The LEGO-BRICO saga continues…
But this is not the option chosen and it was the linguistic arrangements imposed on candidates in these “repeat competitions” were nevertheless those previously declared illegal, which opens the door to a new wave of complaints and appeals to the CST…
R&D in support of candidates to « repeat competitions »AD/177/10 à AD/179/10
In conclusion, in the opinion of R&D, on the basis of all the above elements and of the judgment of 16.10.2013, the rights of candidates would have been better protected by allowing them to pass the CBTs in their main language, and not in their second language.
Who can appeal ?
All candidates excluded from the AC of one of these competitions, either due to the fact that they have not reached the average in the CBTs, or because they are not among the best candidates in the CBTs, or because they were deemed ineligible for competition, can lodge a complaint under Article 90(2) of the Staff Regulation to challenge both the illegality of the notice of competition and their exclusion from the AC.
In what time frame?
Within three months after receiving the communication of their exclusion from the competition.
EACH CASE MUST BE CONSIDERED INDIVIDUALLY. R&D STANDS AT YOUR DISPOSAL TO ASSIST YOU AND GIVE YOU FURTHER INFORMATION.
(1) Judgment of 15.06.2010 (Case F-35/08 ), confirmed on appeal on 14.12.2011
(2) OJ C82A of 21.03.2013 – Competition AD/177/10 (pages 1-5 ) and competitions AD/178/10 and AD/179/10 (pages 6-9 )
(3) Case T-248/10
(4) Notice of competition AD/177/10 published in the OJ C64A 16.03.10