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Update 25.01.2022: internal competition COM/AD/02/21 (AD5) – what’s next?

*25.01.2021Rejection letters are out, please let us know whether you took action [1] and we can coordinate on the  next steps*

Thanks to all of you who answered our December call to action [2] in response to yet another very discriminatory internal competition [3] (COM/AD/02/21 (AD5) [4]) which excludes over 16 000 potentially eligible candidates. Yes, we also noticed that the ‘talent screener’ was simply a request for permission and your staff number [5]. We have a Microsoft Teams group [6] on this topic, come and join the discussion!

For those of you willing and able to take action we asked you to proceed as follows:

  1. First and most importantly apply by 21 December 2021 (midday) 12:00, Brussels time even if you are not eligible.
  2. If the selection panel rejects your application based on non-eligibility, appeal that decision.

Perhaps because of this action (we hope so! – it would show how many of you took the time and energy to act) an amendment to the notice of internal competition [4] was published in Administrative Notice N° 03-2022 / 06.01.2022 [7]: the eligibility checks will be carried out BEFORE the computer-based multiple-choice question (MCQ) test on knowledge of EU policies and institutions.

This means that eligibility will be assessed for all candidates who validated their online application within the deadline (21.12.2021) without having to pass the MCQ test first.

In practical terms, the Selection Board will proceed with the eligibility checks as from January 2022, and only those candidates who are found eligible by the Board will be invited to sit the MCQ test (indicatively planned for early March 2022).

It is expected that all colleagues who on 21.12.2021 were not temporary agents in the AD function group in the Commission will be declared ineligible by the Selection Board and informed via their EPSO account.

Once you are notified of the (negative) decision of the Selection Board on your eligibility, you can resort to a number of legal remedies that we will discuss in detail below.

Please do get in touch with us and let us know [8] if you have applied for internal competition COM/AD/02/21 (AD5), have been declared ineligible by the Selection Board and therefore not admitted to the next stage of the internal competition, and are willing to appeal against the negative decision of the Selection Board.

Within 5 working days of the date when the letter informing you of the negative decision of the Selection Board is sent to you (EPSO account), you can submit a request for review of the said decision.

The request for review [9] should clearly state your case (your claims and arguments) and should be submitted by email (indicating the competition number COM/AD/02/21 (AD5), your name and application number in the title) to the functional mailbox of the competition, namely HR-COM-INT-2021-AD5@ec.europa.eu [10].

The secretariat of the internal competition will forward your request for review to the Selection Board.

You must never contact directly or indirectly any member of the Selection Board (their names will be published on My IntraComm). The breach of this rule will disqualify you from the competition.

You should receive the reply of the Selection Board to your request for review as soon as possible (usually within several weeks).

In the specific case of ineligibility due to not meeting the requirement of being ‘a temporary agent in the AD function group in the Commission’, the request for review will not bring any change and is, therefore, of little value as a legal means of redress, but is part of the process.

You can exhaust the request for review as a legal means of redress, or you can skip it and directly submit an administrative complaint under Article 90(2) of the Staff Regulations.

The complaint under Article 90(2) must be submitted within 3 months from the date when you are notified of the act adversely affecting your interests (the negative decision of the Selection Board on your eligibility).

The complaint must be sent in one of the following ways:

It should be noted that the Appointing Authority – the body that will decide on your complaint under Article 90(2) – does not have the right to change the decisions of the Selection Board. The EU Court of Justice has consistently held that the wide discretion enjoyed by selection boards is not subject to judicial review by the Court unless the rules that govern their proceedings have clearly been infringed.

You should receive the reply of the Appointing Authority within 4 months from the date of sending your complaint under Article 90(2).

In the specific case of ineligibility due to not meeting the requirement of being ‘a temporary agent in the AD function group in the Commission’, the complaint under Article 90(2) will be rejected by the Appointing Authority.

However, we do advise you to exhaust the administrative complaint under Article 90(2) as a legal remedy if you intend to make a judicial appeal: it shows that you have used the available processes.

You can submit a judicial appeal under Article 270 of the Treaty on the Functioning of the European Union and Article 91 of the Staff Regulations.

According to Article 91(2) of the Staff Regulations, an appeal to the Court of Justice of the European Union can be submitted only if:

— the Appointing Authority has previously had a complaint submitted to under Article 90 (2), and

— the complaint has been rejected by express decision or by implied decision.

Article 91(3) of the Staff Regulations prescribes that the judicial appeal must be filed within three months from the date of notification of the decision taken in response to the complaint submitted pursuant to Article 90(2).

However, it is settled case-law that the legal remedy available regarding decisions of a competition selection board normally consists of a direct application to the European Union Court [1]. In order to make sure that your judicial appeal is declared admissible, we advise you to submit an administrative complaint under Article 90(2) before you file a legal action under Article 91 of the Staff Regulations.

Like any citizen of the European Union, you can make a complaint to the European Ombudsman in respect of an instance of maladministration under Article 228(1) [12] of the Treaty on the Functioning of the European Union.

You can submit your complaint to the European Ombudsman online, by post or by fax within two years of the date on which the facts on which the complaint is based came to your attention. [2]

So, it’s a long road, but we intend to take it and we’d like as many of you as possible to join us on the journey.  If we complain but do nothing then nothing will change.

As usual, we would love to hear from you [8].

Take care and stay safe!


[1] see, inter alia, judgment of 18 September 2012 in Case F‑96/09 [13] Cuallado Martorell v Commission, paragraph 53 and the case-law cited.

As the Court has held on a number of occasions, a complaint against a decision of a selection board would appear to serve no purpose, since the institution concerned has no power to annul or amend decisions taken by a selection board. Consequently, an unduly restrictive interpretation of Article 91(2) of the Staff Regulations would merely result in a futile prolongation of the procedure (see, inter alia, judgment of 16 March 1978 in Case 7/77 [14] Ritter von Wüllerstorff und Urbair v Commission, paragraph 8).

[2] Please note that before you lodge a complaint to the European Ombudsman, you must make the appropriate administrative approaches to the Union institution, body, office or agency concerned.