JUDGMENT OF THE GENERAL COURT (First Chamber)
9 June 2021 (*) (1)
(Language regime – Competition EPSO/AD/293/14 for the recruitment of administrators in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics (AD 7) – Non-inclusion on the reserve list – Plea of illegality – Limitation of the choice of the second language of the competition to English, French or German – Regulation No 1 – Article 1d(1) of the Staff Regulations – Discrimination based on language – Justification – Interests of the service)
In Case T‑202/17,
Ana Calhau Correia de Paiva, residing in Brussels (Belgium), represented by V. Villante, G. Pandey and D. Rovetta, lawyers,
applicant,
v
European Commission, represented by L. Radu Bouyon, I. Melo Sampaio and L. Vernier, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU for annulment, firstly, of the decision of the selection board for competition EPSO/AD/293/14 – Administrators (AD 7) in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics of 9 November 2015 not to include the applicant’s name on the reserve list drawn up at the end of the selection procedure, secondly, of the decision of 23 June 2016 reviewing that first decision, thirdly, of the decision of 22 December 2016 rejecting the complaint filed by the applicant against the first decision and, fourthly, of the reserve list drawn up at the end of the selection procedure referred to above in so far as that reserve list concerns the field of competition law.
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, O. Porchia (Rapporteur) and M. Stancu, Judges,
Registrar: B. Lefebvre, Administrator,
having regard to the written part of the procedure and further to the hearing on 6 October 2020,
gives the following
Judgment
I.      Background to the dispute
1        On 23 October 2014, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competition EPSO/AD/293/14 to draw up reserve lists for the recruitment, within the European Commission, of administrators in grade AD 7 in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics (OJ 2014 C 376 A, p. 1, corrigendum OJ 2014 C 425 A, p. 1; ‘the notice of competition’). That competition was organised in the form of a competition based on qualifications and tests.
2        The notice of competition provided, in Section IV thereof, for three computer-based admission tests based on multiple-choice questions and, in Section VI thereof, for tests to be held at an assessment centre and consisting of a case study, a group exercise and a structured interview.
3        In addition, the notice of competition stated that a check for compliance with the general and specific eligibility conditions set out in Section III thereof and a selection based on qualifications provided for in Section V thereof would be carried out initially on the basis of the information given in the application form and that the selection board would assign each selection criterion a weighting (1 to 3) and award each of the candidate’s answers between 0 and 4 points, with the weighted points being added to give an overall score.
4        In respect of the specific conditions for admission, the notice of competition required, in Section III.2.3 thereof, entitled ‘Knowledge of languages’, firstly, as regards the main language (language 1), a thorough knowledge, corresponding to at least level C1 of the Common European Framework of Reference for Languages (CEFR), of one of the official languages of the European Union and, secondly, as regards the second language (language 2), a satisfactory knowledge, corresponding to at least level B2 of the CEFR, of English, French or German, it being required that that second language be different from the main language. In that section, it was stated, inter alia, that the second language options in the notice of competition had been defined in line with the interests of the service, which required new recruits to be immediately operational and capable of communicating effectively in their daily work. In addition, the general rules governing open competitions (OJ 2014 C 60 A, p. 1; ‘the general rules’), to which the notice of competition referred and which, as set out in that notice, were an integral part of that notice, stated, in Annex II thereto, that limiting the choice of second language was also justified by the nature of the tests.
5        Section IV.3 of the notice of competition stated that the admission tests would be held in the main language of the competition and Section VI.3 stated that the assessment centre tests would be held in the second language of the competition.
6        On 25 November 2014, the applicant, Ms Ana Calhau Correia de Paiva, a Portuguese national, submitted an application to take part in competition EPSO/AD/293/14 in the field of competition law (‘the competition at issue’). It is apparent from her application form that the applicant chose Portuguese, her mother tongue, as her main language and French as her second language.
7        By letter of 19 March 2015, sent to the applicant on the same day via her EPSO account, she was informed that she had passed the computer screening tests.
8        At the end of the check for compliance with the general and specific conditions for admission and of the selection based on qualifications by the selection board for the competition in accordance with Section V of the notice of competition, the applicant was invited, by letter of 15 April 2015, to the next stage of the competition, namely to the assessment centre tests.
9        By letter of 16 April 2015, the applicant was invited to attend a case study, a test which was to take place on 13 May 2015. In that letter, EPSO offered the applicant the possibility of using an Azerty FR keyboard in that test, while giving her the possibility of choosing, alternatively, a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard. The applicant requested a change of keyboard in order to take the test using a Qwerty UK keyboard.
10      The applicant took part in the tests that were held at the assessment centre in Brussels (Belgium) on 13 May 2015, so far as concerns the case study, and on 11 June 2015, so far as concerns the structured interview to evaluate general competencies, the structured interview in the field of the competition at issue and the group exercise.
11      By letter of 9 November 2015, sent to the applicant on the same day via her EPSO account, EPSO informed the applicant that the selection board for the competition had decided not to include her name on the reserve list of the competition at issue on the ground that she ‘[was] not among the candidates who obtained the highest aggregate marks in the Assessment Centre (at least 68.59)’ (‘the decision not to include the applicant on the reserve list’). As was apparent from a document entitled ‘competency passport’ annexed to that letter, the applicant had obtained a total score of 61.13 points out of 100.
12      After requesting, by letter of 19 November 2015, a review of the decision not to include the applicant on the reserve list, the applicant was informed, by letter of 23 June 2016, that the selection board for the competition had decided to confirm that decision (‘the review decision’).
13      On 24 August 2016, the applicant filed a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the decision not to include the applicant on the reserve list. In that complaint, she claimed that the limitation of the choice of the type of keyboard to be used for the purpose of carrying out the case study constituted unequal treatment and alleged a failure to state reasons as regards the limitations relating to the types of keyboard made available to candidates and to the choice of the second language of the competition at issue. In addition, the applicant complained about the length of the review procedure.
14      By decision of 22 December 2016, EPSO, acting in its capacity as appointing authority, rejected the complaint as both unfounded and inadmissible on the ground that it was out of time (‘the decision rejecting the complaint’).
II.    Procedure and forms of order sought by the parties
15      By application lodged at the Court Registry on 31 March 2017, the applicant brought the present action.
16      On the date on which that action was brought, an appeal brought by the Commission on 25 November 2016 and registered as Case C‑621/16 P against the judgment of 15 September 2016, Italy v Commission (T‑353/14 and T‑17/15, EU:T:2016:495) was pending before the Court of Justice. By that judgment, the General Court had annulled the notices of open competition EPSO/AD/276/14 to draw up a reserve list of administrators (OJ 2014 C 74 A, p. 1) and EPSO/AD/294/14 to draw up a reserve list of administrators in the field of data protection (OJ 2014 C 391 A, p. 1).
17      By letter lodged at the Court Registry on 16 June 2017, the Commission requested, on the basis of Article 69(d) of the Rules of Procedure of the General Court, that the proceedings in the present case be stayed pending the final decision of the Court of Justice in Case C‑621/16 P.
18      By letter lodged at the Court Registry on 6 July 2017, the applicant objected to a stay of the proceedings.
19      By decision of 11 July 2017, adopted on the basis of Article 69(d) of the Rules of Procedure, the President of the Fifth Chamber of the General Court decided to stay the proceedings.
20      Following delivery of the judgment of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251), on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) adopted, on 4 April 2019, a measure of organisation of procedure to put a question to the parties on the consequences to be drawn, for the present case, from that judgment and from the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249). The parties submitted their observations in that regard within the time limit prescribed.
21      On 5 July 2019, the Commission lodged its defence.
22      The reply and the rejoinder were lodged on 23 September and 11 November 2019, respectively. On 20 November 2019, the written procedure was concluded.
23      On 22 October 2019, in the interests of the proper administration of justice, by reasoned decision and after consulting the judges concerned, the President of the General Court designated, pursuant to Article 27(3) of the Rules of Procedure, a new Judge-Rapporteur, sitting in the First Chamber of the General Court.
24      By letter lodged at the Court Registry on 12 December 2019, the applicant requested that a hearing be held, pursuant to Article 106(2) of the Rules of Procedure.
25      By letter lodged at the Court Registry on the same day, the applicant submitted new evidence, relying on Article 85(3) and (4) of the Rules of Procedure. The Commission submitted its observations on that new evidence within the time limit prescribed and, on that occasion, disputed its admissibility.
26      On 21 July 2020, on a proposal from the Judge-Rapporteur, the Court (First Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put questions in writing to the Commission. The Commission complied with those measures within the time limit prescribed.
27      On 21 September 2020, on a proposal from the Judge-Rapporteur, the Court (First Chamber), by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put written questions to the parties, inviting them to answer those questions at the hearing.
28      The parties presented oral argument and answered written and oral questions put by the Court at the hearing on 6 October 2020.
29      The applicant claims that the Court should:
–        annul, where appropriate having previously declared illegal and inapplicable to the applicant the notice of competition and the language regime that it establishes, pursuant to Article 277 TFEU:
–        the decision not to include the applicant on the reserve list,
–        the review decision;
–        the decision rejecting the complaint;
–        the reserve list of the competition at issue;
–        order the Commission to pay the costs.
30      In addition, the applicant requests that the Court order measures of organisation of procedure requesting the Commission to produce all of EPSO’s files related to the adoption of the decisions the annulment of which is sought.
31      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      Subject matter of the action
32      In her application, the applicant seeks the annulment of the decision not to include the applicant on the reserve list, of the review decision and of the decision rejecting the complaint. The competition reserve list is also the subject of a head of claim for annulment, which will be examined independently (see paragraphs 128 to 138 below).
33      As regards the head of claim seeking annulment of the decision not to include the applicant on the reserve list, it must be borne in mind that, according to settled case-law, where a person whose application for admission to a competition has been rejected seeks review of that decision on the basis of a specific provision which is binding on the administration, it is the decision taken by the selection board, after review, which constitutes the act adversely affecting that person, within the meaning of Article 90(2) of the Staff Regulations or, where applicable, Article 91(1) of those regulations (see, to that effect, order of 3 March 2017, GX v Commission, T‑556/16, not published, EU:T:2017:139, paragraph 21 and the case-law cited). The decision taken after the review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited). It follows that, as the Commission observes, it is the review decision that constitutes the act adversely affecting the applicant in the present case. It must therefore be concluded that the first two heads of claim seek the annulment of the review decision.
34      In that context, it should be noted that, by her third head of claim, the applicant also seeks the annulment of the decision rejecting the complaint. In that regard, it should be borne in mind that, according to settled case-law applicable to EU civil service law, the administrative complaint, as provided for under Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).
35      In the present case, the decision rejecting the complaint merely confirms the decision not to include the applicant on the reserve list and, therefore, the review decision. The fact that the authority authorised to decide on the applicant’s complaint has been led, in response to the complaint, to supplement or amend the grounds for the review decision cannot justify the rejection of that complaint being regarded as an autonomous act adversely affecting the applicant, the statement of grounds for that rejection being deemed to be incorporated in the contested decision against which that complaint was directed (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 55).
36      Therefore, in accordance with the case-law cited in paragraph 34 above, the act adversely affecting the applicant must be considered to be the review decision (‘the contested decision’), the legality of which must be examined by also taking into consideration the grounds set out in the decision rejecting the complaint.
B.      Substance
37      In support of her action, the applicant puts forward five pleas in law, alleging:
–        Firstly, (i) infringement of Article 1 of the Staff Regulations and of the principles of non-discrimination, proportionality and equal opportunities in that EPSO required a Qwerty UK, Azerty FR/BE or Qwertz DE keyboard to be used for the purpose of carrying out the case study and (ii) a manifest error of assessment and infringement of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series 1 Volume 1952‑1958, p. 59), as amended (‘Regulation No 1’);
–        Secondly, infringement of Regulation No 1 with regard to the language regime adopted in the notice of competition and the illegality of that notice of competition;
–        Thirdly, infringement of Article 1 of the Staff Regulations and of the principles of non-discrimination and proportionality in that EPSO and the selection board limited the choice of the second language of candidates in the competition at issue to English, French or German;
–        Fourthly, infringement of the principle of equal opportunities with regard to the selection procedure implemented for the competition at issue;
–        Fifthly, infringement of Article 296(2) TFEU and Article 25 of the Staff Regulations, in that EPSO failed to state reasons for its decision to endorse and promote a particular language regime, a manifest error of assessment, infringement of the notice of competition, in that EPSO performed duties assigned to the selection board, and infringement of Article 41 of the Charter of Fundamental Rights of the European Union.
38      It is appropriate to analyse, first, the second, third and fourth pleas, which, since they all allege, in essence, that the notice of competition is illegal on account of the limitation of the choice of the second language of the competition to English, French or German, may be examined together.
1.      Second, third and fourth pleas alleging that the notice of competition is illegal on account of the limitation of the choice of the second language of the competition to English, French or German
39      In the second, third and fourth pleas in the action, the applicant raises, in essence, a plea of illegality in relation to the notice of competition on account of the language regime that it establishes. In particular, as the applicant stated at the hearing, that plea of illegality relates only to the part of the notice of competition concerning the field of competition law and therefore only to the reserve list concerning that field.
40      The Commission disputes the admissibility of the plea of illegality and its merits.
(a)    Admissibility of the plea of illegality
41      In support of its plea of inadmissibility, the Commission contends that it follows from the case-law that a candidate cannot, in a complaint challenging a decision of a selection board, rely on the alleged unlawfulness of the competition notice if he or she has not challenged in due time the provisions of that notice that, in his or her view, adversely affect him or her. The Commission argues that it is only if a close connection between the statement of reasons for the contested decision and the plea of illegality in relation to the notice of competition is established that an applicant can challenge the legality of the notice. In the present case, there is, in the Commission’s view, no link between the reasons for the applicant’s name not being included on the reserve list and the limitation of the choice of the second language of the competition at issue to English, French or German. The Commission argues that, in particular, such a link cannot be inferred from the comments made in the applicant’s competency passport regarding the general competency ‘communication’. In the Commission’s view, the applicant’s performance in that respect was regarded as ‘satisfactory’, which proves that the fact that she sat the assessment centre tests in French is not the cause of her name not being included on the reserve list.
42      The applicant disputes the Commission’s arguments.
43      As a preliminary point, it should be borne in mind that, according to the case-law of the Court of Justice, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court the inapplicability of that act (judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 66).
44      That provision gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of acts of general application which form the legal basis of that decision (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 67 and the case-law cited).
45      Since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).
46      Thus, in an action for annulment brought against individual decisions, the Court has accepted that the provisions of an act of general application that constitute the basis of those decisions or that have a direct legal connection with such decisions may legitimately form the subject matter of an objection of illegality (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).
47      As regards, in particular, competition notices, it must be borne in mind that, according to settled case-law, in the context of a recruitment procedure, which is a complex administrative operation composed of a series of decisions, a candidate in a competition may, in an action brought against a subsequent step taken in that process, challenge the legality of earlier steps that are closely linked to it (see, to that effect, judgment of 11 August 1995, Commission v Noonan, C‑448/93 P, EU:C:1995:264, paragraph 17 and the case-law cited) and, in particular, challenge the legality of the competition notice pursuant to which the step in question was taken (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 26 and the case-law cited).
48      Failure to challenge a competition notice within the time limit laid down does not prevent an applicant from relying on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice (see judgment of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 40 and the case-law cited).
49      In particular, where the plea alleging irregularities in the notice of competition, which has not been challenged in good time, concerns the statement of reasons for the contested individual decision, the action is accepted as admissible by the case-law. A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the competition notice, comprising the justification for the individual decision concerning him or her taken on the basis of the conditions laid down in the notice, in so far as only that specific decision applying them affects his or her legal position individually and enables him or her to ascertain with certainty how and to what extent his or her personal interests are affected (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 28 and the case-law cited).
50      On the other hand, where there is no close connection between the reasoning of the contested decision and the plea of unlawfulness in relation to the competition notice, which has not been challenged in good time, the plea must be declared to be inadmissible in accordance with the mandatory rules governing time limits for bringing actions, which cannot be derogated from in such a case without offending against the principle of legal certainty (see judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 29 and the case-law cited).
51      It is in the light of those considerations that it is necessary to examine the plea of inadmissibility raised by the Commission against the plea of illegality in relation to the notice of competition.
52      Firstly, it should be borne in mind that, by her plea of illegality, the applicant is challenging, in essence, the provisions of the notice of competition concerning the language regime, namely the limitation of the choice of second language to English, French or German. That second language was used, inter alia, for the tests to assess the general and specific competencies of candidates, which were held at the assessment centre.
53      Secondly, as regards the statement of reasons for the contested decision, it should be borne in mind that, by letter of 9 November 2015, the applicant was informed that her name had not been included on the reserve list on the ground that she had not obtained the highest marks in the assessment centre tests. In addition, in the contested decision, it is stated that the selection board carefully reviewed the marks that had been awarded to the applicant for the assessment centre tests, that it reviewed the assessment of her general and specific competencies and that it concluded that her results reflected her performance at the assessment centre.
54      Thirdly, it is apparent from the ‘competency passport’ issued to the applicant that, for the general competency ‘communication’, she obtained 5.5 points out of 10, which is one of the lowest assessments and scores that she obtained as regards the evaluation of her general competencies at the assessment centre. According to point 1.2 of the general rules, to which footnote No 7 of the notice of competition referred, the purpose of the assessment of those competencies was to evaluate the candidate’s ability to ‘communicate clearly and precisely both orally and in writing’. A finding of the selection board with regard to the applicant as to her knowledge of French or, at the very least, as to her level of proficiency in a competency that was strongly influenced by her knowledge of that language, follows from that by necessary implication.
55      Fourthly, although it is true that the notice of competition did not provide for a test of the applicant’s specific knowledge, in terms of vocabulary or grammar, of English, French or German, it cannot be denied that there is a close connection between the applicant’s knowledge of French, which she chose as a second language, and the tests that she had to sit in that language. The knowledge which the applicant has of French is inevitably and necessarily reflected in the tests to assess the general and specific competencies as provided for by the competition at issue.
56      In that regard, it is established that the likelihood of getting better marks in the tests is higher if these tests are conducted in the candidate’s mother tongue or a language of which he or she has an equal command (judgment of 2 July 2014, Da Cunha Almeida v Commission, F‑5/13, EU:F:2014:176, paragraph 38), especially in the context of a technical test such as the case study.
57      It is common ground that Portuguese is the applicant’s mother tongue. Furthermore, although, as the Commission states, the applicant declared in her application form that her level in French is equivalent to level C2 of the CEFR, as is her level in Portuguese, and that she completed part of her studies in Belgium and France, the fact remains that she claims before the Court, without being contradicted in that regard by the Commission, that she has a better command of her mother tongue than French. That is, moreover, particularly likely to be the case in view of the applicant’s academic and professional background, as she indicated in her application form, from which it is apparent that both her studies and her professional career took place, for the most part, in Portugal.
58      Fifthly, it should be noted that limiting the choice of the second language of the competition to the three languages in question does not only affect the ability of candidates to express themselves orally or in writing, but also determines the type of keyboard that candidates may use for the purpose of carrying out the case study, the provision of keyboards to candidates being limited, according to EPSO’s practice, which was confirmed by the Commission before the Court, to the language (and, as the case may be, to the languages) in which the tests are to be carried out. In the present case, it is not disputed that the applicant was required to use a type of keyboard which she was not accustomed to using because of her mother tongue. It must be stated that that affects the carrying out and therefore potentially the result of a test during which it is necessary to write, using a keyboard, a text of a certain length within a limited timeframe.
59      Sixthly, as regards the argument put forward by the Commission at the hearing that a close connection could only be established if the results of the tests to evaluate candidates’ general competencies proved to be negative or disastrous, it must be stated that such an argument amounts to supporting, without justification, a stricter application of the condition that there be a close connection where the illegality alleged relates to the language regime of the competition.
60      In the light of all the foregoing considerations, it should be held that there is a close connection between the statement of reasons for the contested decision and the provisions of the notice of competition relating to the language regime of the competition at issue, the legality of which is disputed.
61      Accordingly, the plea of inadmissibility raised by the Commission must be rejected and the plea of illegality raised by the applicant in relation to the notice of competition must be declared admissible.
(b)    Merits of the plea of illegality
62      In support of the plea of illegality, the applicant submits, in essence, that the limitation of the choice of second language to English, French or German imposed by the notice of competition constitutes an unjustified infringement of the principles of non-discrimination and equal opportunities.
(1)    Whether there is discrimination
63      In her second plea, the applicant submits that the contested decision should be annulled on the ground that the notice of competition is illegal in the light of Regulation No 1. In her view, the notice of competition is invalid and illegal and infringes Regulation No 1 in that it limits the choice of second language to English, French or German. In addition, the applicant observes that that notice unduly seeks to justify the unjustifiable, improperly relying on the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752).
64      In that regard, firstly, the applicant submits that a mere EPSO notice of competition cannot affect the rights and obligations of citizens and of EU institutions as laid down in Regulation No 1. The applicant argues that EPSO and the Commission should have proposed and adopted appropriate rules of procedure and probably implemented a specific regulation concerning open competitions. Secondly, she maintains that the justification put forward by EPSO in the notice of competition does not explain in any way why, in the specific field of competition law, English, French or German would immediately be required as a second language rather than, for instance, Spanish or Italian. She submits that that justification is a standardised justification relied on by EPSO, in identical or very similar wording, in the majority of notices of open competition.
65      In her third plea, firstly, the applicant argues that the limitation of the choice of the second language of candidates in the competition at issue to English, French or German constitutes an infringement of Article 1 of the Staff Regulations and of the principles of non-discrimination and proportionality. In particular, she submits that EPSO’s practice is potentially discriminatory, as EPSO treats the three languages that it has selected very differently from other official languages of Member States of the European Union. Secondly, the applicant claims, in essence, that the limitation at issue is not justified. She argues (i) that it is close to impossible to justify such a limitation in the absence of provisions to that effect in the rules of procedure of the institutions concerned. That requirement cannot be offset by the content of a notice of competition, which relates only to a specific competition. She submits (ii) that EPSO had no objective reason to limit the choice of the second language of participants in the competition. Thirdly, the applicant puts forward that the compulsory choice between English, French or German appears to be a disproportionate means of achieving the objective of selecting the best possible candidates.
66      In her fourth plea, the applicant submits, in essence, that the wording of the notice of competition has the effect of allowing for certain practices which create a disadvantage for those who, like the applicant, have a native language other than the three languages favoured by EPSO. On the other hand, the notice at issue confers an unfair advantage on those whose native language is one of those three languages in that it allows them to choose their own native language as their second language.
67      In the defence, lodged after the delivery of the judgment of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251), the Commission contends that, even if the choice of second language were discriminatory, that choice is based on objective factors and is, in any event, justified by the interests of the service.
68      As a preliminary point, it should be borne in mind that Article 1 of Regulation No 1 provides as follows:
‘The official languages and the working languages of the institutions of the Union shall be Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.’
69      In that regard, it must be noted that, as stated in paragraph 67 of the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), while the working languages of the EU institutions are expressly referred to in Article 1 of Regulation No 1, Article 6 of that regulation provides that those institutions may stipulate in their respective rules of procedure which of the languages are to be used in specific cases. In the same paragraph of that judgment, the Court noted, moreover, that the institutions concerned by the competition notices at issue in that case had not, on the basis of Article 6 of Regulation No 1, stipulated in their rules of procedure which of the languages were to be used in specific cases.
70      Furthermore, it must be noted from the outset that the Commission, as it has confirmed, has not adopted, in its rules of procedure, provisions stipulating which of the languages included in the general language regime laid down by Regulation No 1 are to be used in specific cases in accordance with Article 6 of that regulation (see, inter alia, paragraphs 103 to 108 below).
71      Moreover, Article 1d(1) of the Staff Regulations provides that, in the application of those regulations, any discrimination based on any ground such as language is to be prohibited. In accordance with the first sentence of Article 1d(6) of the Staff Regulations, ‘while respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy’.
72      It follows that limiting the choice of second language made by candidates in a competition to a restricted number of languages, to the exclusion of the other official languages, constitutes discrimination on grounds of language, which is in principle prohibited under Article 1d(1) of the Staff Regulations. It is clear that such a limitation favours certain potential candidates, namely those who have a satisfactory knowledge of at least one of the designated languages, since they may participate in the competition and thus be recruited as officials or servants of the EU, whereas the others who do not have such knowledge are excluded (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 91 (not published) and the case-law cited); order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 57).
73      Nonetheless, according to the case-law, it is apparent from all the abovementioned provisions that the interests of the service may be a legitimate objective that can be taken into consideration (see, to that effect, judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 89).
74      Thus, the broad discretion enjoyed by the EU institutions with regard to the organisation of their departments, like EPSO, where the latter exercises, as in the present case, powers devolved to it by those institutions, is governed in mandatory terms by Article 1d of the Staff Regulations, so that differences of treatment based on language resulting from restrictions on the language regime of a competition to a limited number of official languages can only be accepted if such a restriction is objectively justified and proportionate to the real needs of the service (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 90 and the case-law cited).
75      In the light of all the foregoing, since the limitation of the choice of the second language of the competition at issue by the notice of competition constitutes discrimination on grounds of language, it is necessary to examine whether that discrimination is justified and proportionate to the actual needs of the service.
(2)    Justification of discrimination
76      As regards the justification of the discrimination at issue, the Commission states that the provisions of the notice (including the applicable general rules) relating to the choice of second language meet two legitimate objectives falling within the interests of the service, namely the need to have immediately operational officials and the nature of the tests carried out at the assessment centre.
77      In the first place, as regards the need to select immediately operational candidates, two reasons explain, in the Commission’s view, the choice of English, French or German as the second language of the competition. The first reason relates to objective factors resulting from internal rules adopted by the Commission regarding the use of languages, while the second reason is that those three languages are used as vehicular languages by the departments to which candidates are to be recruited.
78      In particular, as regards the first reason, the Commission states that point 2.2 of Memorandum SEC(2000) 2071/6 from the President of the Commission of 29 November 2000 concerning the simplification of the decision-making process limits the number of working languages to three in order to simplify the internal working procedures of the Commission. That memorandum was approved by the College of Commissioners at its sitting of 29 November 2000. Furthermore, the Commission submits that the document entitled ‘Language rules depending on adoption procedures’ states that any draft decision to be submitted to the College for oral decision or written decision must be drafted in English, French and German. According to the Commission, the limitation to those three languages was adopted by the President of the Commission on the basis of the implementing rules of the Rules of Procedure of the Commission in order to take into account the minimum communication needs of the College of Commissioners.
79      As regards the second reason, the Commission argues that the recruitment of officials who can express themselves in one of the three languages meets an objective in the general interest ‘in the framework of staff policy’. It submits that, in view of the steady increase in the number of official languages, it is essential to ensure effective internal communication by making sure that every official possesses sufficient knowledge of one or more of the languages that are particularly well known, which serve as vehicular languages within the Commission. In addition, in the Commission’s view, the ability of the departments of an institution to communicate with each other is an essential condition for their operation. The Commission submits that, in the present case, the data that it annexed to its defence show that, among a total of 1 032 officials in the Directorate-General (DG) for Competition, which is the main department of destination of successful candidates in the competition at issue, the three most widely used vehicular languages are English, French and German. It is therefore in the interests of the service, for the purposes of Article 1d(6) of the Staff Regulations, to have officials able to adapt rapidly to and to work in the existing departments of the institution by interacting with staff already in service in its working languages, namely English, French and German.
80      In the second place, in the Commission’s view, the very nature of the selection tests at the assessment centre justifies a limitation of the choice of the second language of the competition at issue. If the candidates and the members of the selection board did not speak the same language, those tests could simply not take place. Accordingly, the Commission submits that it is appropriate to allow staff selection procedures to be carried out in the three official languages that are the most common and the most widely spoken in the Union. It contends that the evidence adduced establishes that, in the present case, English, French and German can be regarded as languages which enabled the competition tests to be organised in view of the level of knowledge of those languages possessed by the members of the selection board and the candidates.
81      Furthermore, in the Commission’s view, the limitation to the three vehicular languages in question reasonably reflects the language skills that may be expected of candidates, in the sense that that limitation is appropriate for achieving the objectives referred to above without being overly restrictive in respect of linguistic diversity, especially since language knowledge in the strict sense (grammar or knowledge of vocabulary) is not assessed in the tests that are held at the assessment centre. In that regard, first of all, the Commission observes that the limitation of the choice of second language was brought to the attention of candidates by means of clear, objective and foreseeable criteria, as evidenced by the justification concerning the nature of the selection tests set out, in particular, in Annex II to the general rules. Next, the Commission submits that the limitation to the three languages referred to in the notice of competition is proportionate in that it results from a proper balancing of the different interests at stake. Furthermore, English, French and German are the best-known foreign languages in the Member States of the European Union, the best-known in Europe and those that citizens of the European Union consider to be the most useful to study. That information is apparent from the report from Eurostat (Statistical Office of the European Union), published in Statistics in Focus
No 49/2010 (‘Eurostat report No 49/2010’), and from Special Eurobarometer No 386/2012. Lastly, the Commission states that the limitation of the choice of the second language of the competition at issue to English, French or German was perfectly predictable for candidates, given that that was already the rule for the first competitions organised by EPSO in 2003. Consequently, the limited choice of second language does not constitute a disproportionate obstacle which prevents EU citizens from being admitted to the competition given that it perfectly addresses their current habits and expectations.
82      The applicant in the reply disputes the Commission’s arguments.
83      In that regard, it must be borne in mind at the outset that, in the context of a staff selection procedure, the institutions have a wide discretion to assess the interests of the service and the qualifications and merits of the candidates to be taken into consideration. Thus, it is possible that the interests of the service may require that the persons recruited have specific language skills. Consequently, the specific nature of the tasks to be performed may justify recruitment based, inter alia, on a thorough knowledge of a specific language (see, to that effect, judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraphs 67 and 68 and the case-law cited).
84      However, it is for the institution which restricted the language regime of a selection procedure to a limited number of official languages of the Union to establish that such a restriction is well suited to meet the actual needs relating to the duties that the persons recruited will be required to carry out. In addition, any requirement relating to specific language skills must be proportionate to that interest and be based on clear, objective and predictable criteria enabling candidates to understand the reasons for that requirement and allowing the EU judicature to review the lawfulness thereof (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 93).
85      In that context, it is for the EU judicature to carry out an actual assessment of the rules in question and the specific circumstances at issue. Only such an assessment is capable of establishing knowledge of languages which may objectively be required, in the interests of the service, by the institutions for specific duties and, consequently, whether the restriction on the choice of the languages which may be used in order to participate in those competitions is objectively justified and proportionate to the actual needs of the service (see, to that effect, judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 94).
86      In particular, the EU judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of supporting the conclusions drawn from it (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 104 and the case-law cited).
87      It is therefore appropriate to examine the arguments put forward by the Commission in order to justify the discrimination at issue. In that regard, a distinction must be drawn between the justifications set out in the notice of competition and the evidence adduced by the Commission in support of those justifications.
(i)    Justifications set out in the notice of competition
88      In the present case, as is apparent from paragraph 1 above, the notice of competition states that the purpose of the competition at issue is to draw up reserve lists from which to recruit officials at AD 7 level within the European Commission in the fields of competition law, corporate finance, financial economics, industrial economics and macroeconomics. As regards the limitation of the choice of the second language of the competition at issue to English, French or German, the notice of competition states that that limitation was decided in the light of the criteria set out in Section III.2.3 of the notice of competition (see paragraph 4 above) and Annex II to the general rules, namely, firstly, the need for new recruits to be immediately operational and capable of communicating effectively in their daily work and, secondly, the nature of the selection procedure.
89      As regards the need for new recruits to be immediately operational, on the one hand, it should be noted that the justification thereof is set out in the general rules, which state, in Annex II thereto, that limiting the choice of second language is justified by several factors and, firstly, by the interests of the service, which ‘require that new recruits should be immediately operational and capable of effectively performing the duties for which they were recruited in the field or role covered by the competition’.
90      On the other hand, it follows from Section III.2.3 of the notice of competition that, in order to be regarded as being immediately operational, candidates in the competitions in question must be capable of ‘communicating effectively in their daily work’ given that ‘otherwise the efficient functioning of the institutions could be severely impaired’. Thus, ‘it has long been the practice to use mainly English, French, and German for internal communication in the EU institutions and these are also the languages most often needed when communicating with the outside world and dealing with cases …’. Consequently, according to the notice of competition, ‘in balancing the interests and needs of the service and the abilities of candidates, and given the particular field of this competition, it is legitimate to organise tests in the three languages so as to ensure that all candidates are able to work in at least one of them, whatever their first official language’. The notice of competition also states that ‘assessing specific competencies in this way allows the institutions to evaluate candidates’ ability to be immediately operational in an environment that closely matches the reality they would face on the job’.
91      According to the case-law, that need for new recruits to be immediately operational could possibly be capable of justifying a limitation to English, French and German (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 106 (not published) and the case-law cited). However, it should be noted that, in the light of the case-law referred to in paragraphs 83 and 84 above, although the considerations set out in paragraph 90 above indicate the existence of an interest of the service in new recruits being able to perform their duties and communicate effectively as soon as they take up their duties, they are not in themselves sufficient to establish that the duties in question, namely those of a case handler in the Commission and, more specifically, in the Commission’s DG Competition, in practice require knowledge of English, French or German, to the exclusion of the other official languages of the Union (see, to that effect, judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 72).
92      That analysis cannot be invalidated by the description of the duties that the successful candidates recruited will be required to carry out, as set out in the notice of competition.
93      According to Annex I to the notice of competition, entitled ‘Field 1. Competition law (AD 7), 1. Duties’, the main duties of administrators in the field of European competition law include, inter alia, conducting analyses related to EU antitrust, merger and State aid policy and carrying out administrative, advisory and supervisory duties related to the activities of competition policy of the European Union.
94      The main duties of case handlers vary depending on whether they work in the field of antitrust, mergers or State aid and may include, inter alia, assessment of how to define relevant markets in accordance with competition law principles, assessment of whether a specific behaviour or agreement between undertakings could amount to an infringement of Articles 101 or 102 TFEU or whether a notified concentration would lead to a significant impediment of effective competition within the meaning of Article 2(2) and (3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), and whether commitments offered by the parties would remove competition concerns identified as a result of a concentration, assessment of whether a certain measure can be qualified as State aid according to the definition contained in Article 107(1) TFEU, analysis of the compatibility assessment of a State aid measure according to the available rules, conducting market investigations, preparing and drafting internal notes, Commission decisions and other procedural documents (such as statements of objections) and preparing and drafting proposals for legislation, Commission notices and other policy documents in the field of EU antitrust, merger and State aid policy.
95      However, it is not possible to establish, on the basis of that description alone, that the three languages to which the choice of the second language of the competition at issue is limited would all enable successful candidates in that competition to be immediately operational. Moreover, there is nothing in the notice of competition that makes it possible to establish that those three languages are actually used in carrying out the duties listed in Annex I thereto.
96      Furthermore, the large number of different tasks referred to in Annex I to the notice of competition, which involve interacting with various authorities in all Member States of the European Union and with undertakings of varying origins in all of the sectors concerned by competition law, would tend instead to indicate that, without excluding the possibility that the command of a particular language may prove essential, the recruitment of staff with different language profiles would benefit the functioning of the department.
97      It follows that, even if understood in the light of the description of the duties set out in Annex I to the notice of competition, the ground based on the need for new recruits to be immediately operational cannot, in view of its general and abstract wording, justify limiting the choice of the second language of the competition at issue only to English, French or German.
98      As regards the justification, set out in Annex II to the general rules, relating to the nature of the selection procedure and, in particular, to the specific nature of the assessment centre tests, it should be noted that the justification in question could, on account of its general wording, apply to any competition procedure. In addition, it is apparent from that annex that the selection procedure in place since 2010 and, in particular, the assessment centre tests are intended better to predict whether candidates will be capable of performing their duties. It follows that the argument based on the nature of the selection procedure is in actual fact closely linked to the ground relating to the need for new recruits to be immediately operational. Accordingly, if that ground is lacking (see paragraph 97 above), the argument based on the nature of the selection procedure cannot, in itself, justify limiting the number of languages that may be chosen as the second language of the competition.
99      Furthermore, as regards the argument stated in Annex II to the general rules that ‘to ensure that candidates can be assessed fairly and can communicate directly with assessors and the other candidates taking part in an exercise, applying this method [of assessment] requires, in particular, that the assessment centre be conducted in a [vehicular language], it must be stated that that argument specifically proves that the limitation of the choice of second language to the three languages in question is not imposed by the nature of the tests.
100    It follows that the justification based on the nature of the selection tests at the assessment centre, as set out in Annex II to the general rules, is not capable of supporting the limitation, provided for in the notice of competition, on the choice made by candidates of the second language of the competition at issue, inasmuch as that justification does not make it possible to establish why that choice should be made only from among the three languages in question in the present case, namely English, French or German, to the exclusion of other official languages of the European Union.
101    In those circumstances, it is appropriate to examine whether the various items of evidence that the Commission has adduced are capable of showing that, in the light of the functional specificities of the posts to be filled, the limitation at issue was objectively justified by, firstly, the need for successful candidates in the competitions at issue to be immediately operational and, secondly, the nature of the tests.
(ii) Evidence adduced by the Commission in support of the justification relating to the need to ensure that new recruits are immediately operational
102    As regards the justification relating to the need to ensure that new recruits are immediately operational, the Commission provides a set of evidence by which it seeks to establish that English, French and German are the Commission’s three working languages and the most widely used vehicular languages in internal communication between the departments of that institution. It is appropriate to examine the relevance of that evidence to the resolution of the present dispute.
–       Evidence relating to the Commission’s internal practice concerning languages
103    In order to establish that English, French and German are the three working languages of the Commission, the latter produces, in the first place, Memorandum SEC(2000) 2071/6 from the President of the Commission of 29 November 2000 concerning the simplification of the decision-making process of that institution and an extract from the minutes of the 1502nd meeting of the Commission of 29 November 2000, drawn up on 1 December 2000 under reference PV(2000) 1502 and containing the approval by the College of Commissioners of that memorandum. In the Commission’s view, the memorandum in question limits to three the number of working languages of the institution (see paragraph 78 above).
104    In the second place, in reply to the measure of organisation of procedure sent to it by the Court (see paragraph 26 above), the Commission also adduced the implementing rules of its Rules of Procedure, annexed to its Decision C(2010) 1200 final of 24 February 2010, and the Rules of Procedure as amended.
105    In the third place, the Commission submits a document entitled ‘Language rules depending on adoption procedures’, which, in its view, includes the rules on the decision-making process of the Commission adopted by its President. In the Commission’s view, it follows from those ‘rules’ that ‘any draft decision to be submitted to the College for oral decision or by written decision, must be drafted in English, French and German’ (see paragraph 78 above).
106    As regards the documents referred to in paragraphs 103 to 105 above, it should be noted that, as the Commission confirmed at the hearing, there was no formal decision providing for a limitation to the three languages in question.
107    Furthermore, the set of documents produced by the Commission does not allow a link to be established between the languages used in the various decision-making processes of the Commission, in particular those taking place within the College of Commissioners, and those that successful candidates in the competition at issue will be likely to use when performing the duties of a case handler in the field of competition law in order to be immediately operational (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraphs 121 and 122 (not published), confirmed by the judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraphs 106 and 107).
108    Accordingly, those documents are not sufficient to justify the choice of English, French or German as the languages used by the Commission’s departments when performing the duties referred to in the notice of competition. Consequently, it must be held that, in the light of the functional specificities of the posts to which that notice refers, the documents in question are not capable of establishing that limiting the choice of the second language of the competition to the three languages mentioned is appropriate for the purpose of ensuring, in response to the actual needs of the service, that new recruits are immediately operational.
–       Evidence relating to the languages used by staff members of DG Competition
109    The Commission produces data relating to the use of English, French and German by DG Competition staff. In its replies to the measure of organisation of procedure (see paragraph 26 above), the Commission stated that those data had been extracted from the internal database of the Human Resource Management information system, Sysper. It also provided an Excel table which it contends is the extended version of the data extracted from that internal database and which shows all the languages declared by DG Competition staff. In the Commission’s view, those data are capable of showing that English, French and German are the three vehicular languages most widely used by agents and officials within DG Competition, which represents the main department of destination of successful candidates in the competition at issue in the present case.
110    The two documents consist of one page, on which there are three tables entitled ‘First Language’, ‘Second Language’ and ‘Third Language’.
111    In that regard, it must, first of all, be stated that, as was confirmed by the Commission in its replies to the measure of organisation of procedure (see paragraph 26 above) and at the hearing, the data in question represent the state of language knowledge on a date subsequent to that of the publication of the notice of competition, namely 1 June 2019, with the result that they reflect only imperfectly the state of language knowledge on the date of publication of the notice of competition.
112    In any event, it must be stated that the data in question merely show the language knowledge of DG Competition staff. Consequently, they do not make it possible to establish which languages would be necessary for performing the duties of a case handler.
113    Lastly, even if the data concerning the language knowledge of the agents and officials concerned were considered to be capable of reflecting the language regime of the institution, the following must be noted.
114    Firstly, in view of the mobility of an official and, even more so, of an agent of the institutions during his or her career, those data ultimately provide only a picture at a point in time of the language knowledge of officials and agents performing the duties which successful candidates in the competition at issue will be required to perform, a picture which cannot be regarded as permanent. Secondly, the fact that the persons concerned ‘speak’ a language does not mean that they are capable of performing their duties in that language and, even less so, that they use that language in their work. Furthermore, it is in no way apparent from the data extracted from the Sysper internal database that the persons concerned have a knowledge of the languages declared (at least as regards their language 2) which is equivalent to ‘level B2’ of the CEFR, in accordance with the requirements of the notice of competition.
115    Moreover, although the data in question relate to the language knowledge of the officials and agents concerned, they nonetheless provide only a partial picture of that knowledge. In order to ascertain the number of persons from among officials and agents with at least a satisfactory knowledge, for example, of English, account must also be taken of those for whom English is a fourth language (and not only a first, second or third language), since it cannot be ruled out that an official or agent may possess a satisfactory knowledge of more than three languages (see, to that effect, order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 99).
116    The data in question cannot therefore justify limiting the choice of the second language of the competition at issue, since they do not show which languages successful candidates in the competition will be required to use in the performance of their duties on a daily basis and, consequently, which languages a satisfactory command of which would make those successful candidates immediately operational new recruits.
(iii) Evidence adduced by the Commission in support of the justification relating to the nature of the selection tests at the assessment centre
117    Without prejudice to what has been stated in paragraphs 98 to 100 above as regards the justification based on the nature of the selection tests at the assessment centre as set out in Annex II to the general rules, it should be borne in mind that, in support of the argument that limiting the choice of second language to English, French or German is justified by the very nature of the selection tests at the assessment centre, the Commission submits, in essence, that the three languages in question are the most common and the most widely spoken official languages in the Union.
118    In particular, in support of that argument, the Commission produces a series of statistical data from Eurostat report No 49/2010, from Special Eurobarometer report No 386 of June 2012 and from an extract from Eurostat statistics concerning the foreign languages studied most commonly within the European Union in 2016. Furthermore, it should be noted that the Commission relies on those same data in order to prove that the limitation of the choice of second language is proportionate (see paragraph 81 above).
119    As regards the Eurostat statistical data published in 2016, it must be stated that they represent the status of language knowledge on a date subsequent to that of the publication of the contested notice (see paragraph 1 above).
120    As regards the statistical data from Eurostat report No 49/2010 and from Special Eurobarometer report No 386, it should be noted that they refer in general to the language knowledge of all Europeans and it cannot be assumed that they reflect the language knowledge of potential candidates for the competition at issue. There is nothing to suggest that EU citizens most likely to take part in that competition were those belonging to the majority that appears to emerge from that data or, at the very least, that a large number of potential candidates for the competition at issue would belong to that majority. Thus, the relevance of those statistical data is reduced. They cannot show that the number of potential candidates who are affected by the limitation at issue is lower than would be the case were that choice limited to other languages (see, to that effect, order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 102 and the case-law cited).
121    In any event, as regards the statistical data from Eurostat report No 49/2010 and from Special Eurobarometer report No 386, it must be noted that they relate, in respect of the former, to reference year 2008 and, in respect of the latter, to 2012.
122    In view of the constant evolution of practices with regard to the learning of foreign languages and of the perception which EU citizens have of those languages, and of the time which elapsed between the collection of those data and the publication of the notice of competition, it must be stated that the Commission has not provided evidence and data capable of justifying its choice at the time of that publication.
123    Consequently, for all of the reasons given above, the statistical data provided by the Commission are not capable of proving that English, French and German were the most common and the most widely spoken languages in the Union at the time of the competition at issue.
124    At most, those data might be capable of showing that the limitation at issue was proportionate if it proved to be in the interests of the departments concerned by the notice of competition to have immediately operational successful candidates or in response to requirements relating to the nature of the selection procedure (see, to that effect, order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 102 and the case-law cited). However, as stated, inter alia, in paragraphs 95, 97 to 99, 108, 116 and 123 above, the Commission has failed to show that that limitation was actually justified by such considerations.
125    In the light of all the foregoing, it must be concluded that the evidence adduced by the Commission is not capable of supporting the reasons given in the notice of competition to justify the need and proportionality of the limitation at issue.
126    Since the Commission has not adduced any evidence capable of justifying the limitation at issue with regard to the competition at issue in the present case, and in the light of the case-law of the Court of Justice referred to above, it is necessary to uphold the plea of illegality raised by the applicant in relation to the notice of competition, to declare that notice inapplicable to the present case and therefore to uphold the second, third and fourth pleas in the action, since those pleas form the basis of that plea of illegality.
127    Consequently, it is appropriate to annul the contested decision, without it being necessary to rule on the first and fifth pleas in the action, on the request for measures of organisation of procedure ordering the Commission to produce all of EPSO’s files related to the adoption of the contested decision (see paragraph 30 above) or on the admissibility of the new evidence submitted by the applicant on 12 December 2019 (see paragraph 25 above).
2.      Application for annulment of the reserve list
128    The applicant submits that she has an interest in the annulment of the reserve list of the competition at issue. She maintains, in essence, that, because of the inappropriate language regime, the competition at issue is probably based on an incorrect overall evaluation of the candidates, including those whose name has been included on the reserve list. She claims, therefore, to have an interest in all candidates being re-assessed in accordance with a judgment made, potentially, in her favour, in the position of the candidates whose name is included on the reserve list being reviewed and in her position also being re-assessed in the light of that review. Furthermore, in the applicant’s view, having a reserve list composed of persons who have been evaluated using incorrect or unlawful criteria runs counter to the Staff Regulations, which recommend the recruitment of the best officials, and, in the present case, that specifically affects her legal position directly and individually.
129    The Commission disputes the applicant’s arguments.
130    As a preliminary point, it should be noted that, at the hearing, the applicant, when questioned in that regard by the Court, confirmed that her application for annulment of the reserve list should be interpreted as seeking annulment of the reserve list concerning only the field of competition law (see paragraph 39 above).
131    Furthermore, it should be borne in mind that, under Article 266 TFEU, the institution, body, office or entity whose act has been declared void is required to take the necessary measures to comply with the judgment of the EU judicature and, in particular, to adopt, in compliance with the principle of legality, all measures liable to provide due compensation for the damage which the applicant has suffered as a result of the act which has been declared void (see, to that effect, judgment of 15 September 2005, Casini v Commission, T‑132/03, EU:T:2005:324, paragraph 98 and the case-law cited) without prejudice to the possibility the applicant has of subsequently bringing an action against the measures adopted by the Commission in order to comply with the judgment.
132    In addition, it follows from the case-law of the Court that, when deciding on the consequences arising from the annulment of a measure relating to the selection procedures for EU staff, the EU Courts must seek to reconcile the interests of candidates disadvantaged by an irregularity which occurred during that procedure with the interests of other candidates, as a result of which they must take into account not only the need to restore the injured candidates’ rights, but also the legitimate expectations of the candidates already selected (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 83 and the case-law cited).
133    In order to do so, the EU Courts must take into consideration the nature and effects of the irregularity in question and the various possible measures to reconcile the need to restore the rights of the injured applicant with the situation of third parties and the interests of the service. To that effect, the number of persons affected by the irregularity of the selection procedure and the number of successful candidates may be relevant factors in such an assessment (see, to that effect, judgment of 8 May 2019, Joint Undertaking Fusion for Energy v Galocha, C‑243/18 P, EU:C:2019:378, paragraph 47).
134    It is apparent from that case-law that the consequences of the annulment of a measure relating to the selection procedures for EU staff must be established taking into account the specific circumstances of each particular situation (judgment of 8 May 2019, Joint Undertaking Fusion for Energy v Galocha, C‑243/18 P, EU:C:2019:378, paragraph 48).
135    In the present case, firstly, it must be stated that the competition at issue is not of limited size, with 23 successful candidates included on the reserve list drawn up for the field of competition law, including, according to the information provided by the Commission in its replies to the measure of organisation of procedure (see paragraph 26 above) and at the hearing, 7 who have not yet been recruited. Secondly, as the Commission rightly observes, the competition at issue is selective in nature, requiring considerable effort on the part of candidates before they are selected.
136    In addition, it should be noted that, at the hearing, the Commission considered other measures to restore the rights of the injured applicant in the event of annulment of the contested decision. In particular, after emphasising the lack of added value of the annulment of the reserve list for the applicant, it considered the possibility of her being invited to resit the test. Furthermore, the Commission declared its willingness to consider the possibility of reaching an agreement with the applicant to satisfy her rights without annulling the reserve list should it prove difficult to organise a new test for the applicant alone.
137    In the light of all the foregoing and, in particular, of the need to reconcile the applicant’s rights with the legitimate expectations of third-party successful candidates in the competition at issue, and of the need to comply with the principle of proportionality, it is unnecessary to call into question the competition results in their entirety or to annul the appointments made as a result thereof. Calling into question the competition results in their entirety would not be justified in view of the particularly long time that has elapsed since the publication of the reserve list of the competition at issue in December 2015.
138    Accordingly, it is appropriate to reject the application for annulment of the reserve list, while leaving it to the Commission, in accordance with the case-law referred to in paragraph 131 above, to take the necessary measures with regard to the applicant in compliance with the annulment of the contested decision.
Costs
139    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
140    In the present case, the applicant and the Commission have been unsuccessful in part. However, it appears justified to order the Commission, in addition to bearing its own costs, to pay two thirds of the applicant’s costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Annuls the decision of the selection board of open competition EPSO/AD/293/14 of 23 June 2016, transmitted by the European Personnel Selection Office (EPSO), rejecting the request for review made by Ms Ana Calhau Correia de Paiva following her exclusion from the reserve list of the competition by a decision of 9 November 2015;
2.      Dismisses the action as to the remainder;
3.      Orders Ms Calhau Correia de Paiva to bear one third of her own costs;
4.      Orders the European Commission to bear its own costs and to pay two thirds of the costs incurred by Ms Calhau Correia de Paiva.
Kanninen
Porchia
Stancu
Delivered in open court in Luxembourg on 9 June 2021.
E. Coulon
S. Papasavvas
Registrar
President
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought by the parties
III. Law
A. Subject matter of the action
B. Substance
1. Second, third and fourth pleas alleging that the notice of competition is illegal on account of the limitation of the choice of the second language of the competition to English, French or German
(a) Admissibility of the plea of illegality
(b) Merits of the plea of illegality
(1) Whether there is discrimination
(2) Justification of discrimination
(i) Justifications set out in the notice of competition
(ii) Evidence adduced by the Commission in support of the justification relating to the need to ensure that new recruits are immediately operational
– Evidence relating to the Commission’s internal practice concerning languages
– Evidence relating to the languages used by staff members of DG Competition
(iii) Evidence adduced by the Commission in support of the justification relating to the nature of the selection tests at the assessment centre
2. Application for annulment of the reserve list
Costs
*      Language of the case: English.
1      The present judgment is published by extracts.