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2013.10.18 – GLANTENAY JUDGEMENT: The Court confirms R&D’s position ...

CONFIRMATION OF CENTRAL ROLE OF THE SELECTION BOARD IN THE COMPETITIONS AND ILLEGALITY OF THE TALENT SCREENER IN THE FIRST STAGE OF THE SELECTION OF CANDIDATES

The European Union Civil Service Tribunal delivered a judgement on 16 September 2013 (attached Cases F-23/12 and F-30/12), challenging the selection method known as the “talent screener” designed for the purposes of the specialised EPSO competitions but also used in the on-going Commission internal competitions for AD. In any case, R&D had already been challenged this approach (see Renard Déchaîné on internal competitions).

Based on Annex III of our Staff Regulations, the European Union Civil Service Tribunal confirms the decisive role of the joint selection board in competitions and its exclusive responsibility for EVERY step of the procedure. However, the litigious selection method is accused of being based solely on the number of positive replies given by the candidates to the questions about their qualifications and professional experience, without providing an examination by the selection board of the relevance of the qualifications and professional experience.

1. Further confirmation on the Pachtitis Law

This judgment is in line with the Pachtitis jurisprudence (judgement of 15.06.2010, confirmed on 14.12.2011) where it is recognised that the selection board must monitor and supervise the conduct of the whole of the competition tests, including those in the preliminary phase. EPSO’s tasks are essentially of an organisational character and are not linked in any way to those of a selection board.

The Court thus found (paragraph 72):

“(…) It is clear from Article 5, paragraphs 1 and 3 of Annex III thereto in case of selection based on quali­fications, that it is up to the selection board to consider whether the qualifications and experience of the candidates meet the conditions stipulated by the competition notice (see, to that effect, the judgements of the General Court of the European Union of 14 December 2011, Commission / Pachtitis, T-361/10 P , paragraph 43, and Commission / Vicente Carbajosa Others T- 6/11 P, para­graph 58) . However, the method of selection governing the first stage assigns the task of determin­ing the weight of each question to the selection board alone, then that of counting the number of points obtained by each candidate and, finally, that of determining, depending on the number of people competing in this first stage and the number of points obtained by the latter, the threshold of points required to be admitted to the second stage of the selection procedure based on qualifica­tions.”

2. The facts giving rise to the judgment of 16 September 2013: using a first selection based on the “talent screener”

The “talent screener” requires candidates to answer questions about their qualifications or professional experi­ence. The questions are set by the appointing authority without the involvement of the selection board that eventu­ally defines a weighting (1 to 3) for each question. It multiplies the coefficient by the positive replies only (if the candidate says ‘no’ to the question, no further indication is to be provided). It then sets a threshold of points for selecting candidates who pass to the second stage.

Applications for all other candidates eliminated in the first phase, are not even considered by the selection board.

In the second stage, the selection board establishes a coefficient between 0 and 4 for each answer. It assesses the positive responses from candidates and to each it assigns a coefficient that is then multiplied by the weighting given to each of the questions (1 to 3). It then defines a new global threshold. Only the candidates who have reached the latter threshold are admitted to the final stage of the competition (assessment centre).

Thus, the system is based on the candidates’ self-assessment, and they may have an overly favourable interpretation of the criteria that are posed to them or on the contrary, make an incorrect assessment of their qualifications or professional experience or are based on an erroneous understanding of the ques­tions 1 .

Contrary to what some lenient interpretations suggest, the Tribunal has not only confirmed the role of the selection board, it also reached the same conclusion (paragraph 73):

” ( … ) This selection method does not provide for any control by the selection board as to the suitability of academic and professional qualifications held by applicants. Such a method necessarily im­plies that those candidates are not selected based on the relevance of their qualifications or pro­fessional experience, but on the impression that such candidates have of their qualifications, and this is not sufficiently objective data for the selection of the best candidates, nor of the con­sistency of the selection process used.”

Thus, the Court declares this first phase of selection to be illegal (paragraph 71), noting that the compe­tition notice provides for the elimination of some candidates because their qualifications are not relevant enough, without this relevance being actually considered by the selection board:

” ( … ) The method of selection of qualifications used by the appointing authority in the notice of compe­tition at the first stage was to ask the applicants, using a questionnaire, if they considered them­selves to meet a set of conditions in relation to their education, training and professional experi­ence, then, based on the replies of all candidates, to determine a threshold below which candi­dates who, after weighting, did not have a sufficient number of positive replies, recorded as points, were eliminated. Thus conceived, the Court considers that such an approach is contrary to the provisions of the Staff Regulations and the general principles governing the competition.”

This is word for word what R&D and the staff representatives have always criticised!

In making this judgment, the Community judge intends to confirm the Pachtitis jurisprudence in which the selec­tion board alone determines the list of candidates who meet the conditions of the competition notice, conducts the tests and prepares a list of suitable candidates.

With this GLANTENAY judgment, a halt has indeed been brought to the development of new selection methods improperly restricting the powers of the selection board (paragraph 76):

“(…) It should be noted that with the elimination of some candidates on the grounds that their degrees and work experience would not be relevant enough without this relevance being actually consid­ered by the selection board, the provisions of the competition notice relating to the first stage of the selection procedure on qualifications unduly restrict the prerogatives of that selection board and that, therefore, they should be considered illegal.”

Is it the illegality of the first phase of ‘talent screener ‘ or ‘ talent screener “in its entirety?

The Tribunal did not answer this question. At this stage, therefore we should limit ourselves to two considera­tions:

1) Assuming that the selection board examines all cases, how can it make a comparative and objective assess­ment of the candidates, if the evaluation must be based on the subjective responses of the candidates them­selves, without having their qualifications? How can it avoid defective evaluation as a result of the fact that a can­didate has, because of misunderstanding or error, answered ‘no’ to a question in the “talent screener?”

2) How can the selection board assure the selection of the best candidates, as required by the statute (Article 27), if, in the second stage of evaluation, it only examines a certain number of candidates? How can it exclude candidates without actually examining the relevance of their qualifications?

These questions posed by R&D to which the Tribunal may have already made an initial response (paragraph 70):

(…) It should be emphasized that the exercise by the appointing authority of that discretion, regardless of the number of people likely to apply for the competition concerned, is necessarily limited by the provisions in force as well as general principles of law. It follows that the method chosen by the appointing authority must firstly, be focussed on the recruitment of people with the highest stand­ards of competence and performance in accordance with Article 27 of the Statute; secondly, in ac­cordance with Article 5 of Annex III of the Staff Regulations, the task of evaluating, case by case whether each candidate’s qualifications or professional experience corresponds to the level re­quired by the status and the notice of competition, is reserved to an independent selection board (Case Blackler/Parliament, paragraph 23); thirdly, ensure a consistent and objective selection pro­cess. “

IN THIS CONTEXT, R&D REQUESTS A FORMAL OPINION FROM THE LEGAL SERVICE AND WILL CONTIN­UE TO FOLLOW DEVELOPMENTS CONCERNING THIS JUDGMENT FOR COMPETITIONS IN PROGRESS AND FUTURE SELECTIONS PROCEDURES. R&D WILL KEEP YOU UP-TO-DATE ON A REGULAR BASIS.

HAVE YOU PARTICIPATED IN AN EPSO COMPETITION USING THE TALENT SCREENER THAT HAS NOW BEEN JUDGED ILLEGAL? ARE YOU GOING TO BE EXCLUDED FROM AN INTERNAL COMPETITION? R&D IS AVAILABLE TO ADVISE YOU AND SUPPORT YOU IN THE STEPS TO BE TAKEN.

1 As R&D has denounced on several occasions in the course of certain of these competitions, the sometimes high level of thresholds required to pass to the second stage, reinforces the subjective nature of the candidates evaluation and a tendency to reply, so far as possible, positively, to the talent screener questions.