Cases T‑124/13 and T‑191/13
Italian Republic
andKingdom of Spain
v
European Commission
(Languages — Notices of open competition for the recruitment of administrators and assistants — Choice of second language from three languages — Language of communication with candidates in competitions — Regulation No 1 — Article 1d(1), Article 27 and Article 28(f) of the Staff Regulations — Principle of non-discrimination — Proportionality)
Summary — Judgment of the General Court (Eighth Chamber), 24 September 2015
1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility
(Statute of the Court of Justice, Art. 21, first para; Rules of Procedure of the General Court, Art. 44(1)(c))
2.      Actions for annulment — Competence of the EU judicature — Scope — Prohibition on ruling ultra petita — Obligation to comply with the framework of the dispute defined by the parties — No obligation to rule on the basis only of arguments raised by the parties
(Art. 263 TFEU)
3.      European Union — Rules on languages — Regulation No 1 — Scope — Relations between the institutions and their staff — Included in the absence of specific regulations
(Council Regulation No 1)
4.      Officials — Competitions — Running of an open competition — Languages of communication between the European Personnel Selection Office (EPSO) and the candidates — Restriction — Not permissible
(Staff Regulations, Annex III, Art. 1(2); Council Regulation No 1, Art. 2)
5.      Officials — Competitions — Organisation — Conditions for admission and detailed rules — Discretion of the appointing authority — Limits — Compliance with the linguistic regime laid down by Regulation No 1
(Staff Regulations, Art. 2; Council Regulation No 1, Art. 2)
6.      Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Distinguished from manifest error of assessment
(Arts 263, second para., TFEU and 296 TFEU)
7.      Officials — Competitions — Running of an open competition — Languages of participation in tests — Limitation of the choice of second language — Discrimination based on language — Justification based on the need to choose a restricted number of languages for internal communication — Not permissible
(Staff Regulations, Arts 1(d) and 28(f), and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)
8.      Officials — Competitions — Running of an open competition — Languages of participation in tests — Equal treatment — Judicial review — Scope
(Staff Regulations, Arts 1(d) and 28(f), and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)
9.      Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a notice of open competition — Legitimate expectations of the candidates selected — Results of the competition not called into question
(Art. 266 TFEU; Staff Regulations, Art. 91)
1.      In accordance with the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, all applications must contain the subject matter of the dispute and a brief statement of the grounds on which the application is based. Irrespective of any question of terminology, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of judicial review. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. More specifically, whilst it should be acknowledged that the statement of the grounds in the application need not conform with the terminology and layout of the Rules of Procedure, and whilst the grounds may be expressed in terms of their substance rather than of their legal classification, the application must nonetheless set out the said grounds with sufficient clarity. A mere abstract statement of the grounds in the application does not alone satisfy the requirements of the Statute of the Court or the Rules of Procedure and the expression ‘brief statement of the pleas in law’ or ‘summary of the pleas in law’ used therein means that the application must specify on what grounds the action is based.
It follows that, apart from public order pleas, which the Courts of the European Union must, where appropriate, raise of their own motion, it is for the applicant to set out in the application the grounds on which he relies in support of his action. An abstract reference to the heading of a plea in law is not sufficient for that purpose. It is also necessary to flesh out the plea in law relied on, in other words explain how it is connected to the form of order sought in the action and, if it is held to be well founded, how it should result in the Court granting the form of order sought.
(see paras 33, 34)
2.      Within the framework of the dispute as defined by the parties, the EU judicature, whilst it must rule only on the application submitted by the parties, cannot confine itself to the arguments put forward by the parties in support of their claims or it may be forced to base its decision on erroneous legal considerations. In particular, in a dispute between the parties concerning the interpretation and application of a provision of EU law, the EU judicature is required to apply to the facts put before it by the parties the relevant rules of law for the solution of the dispute. According to the principle iura novit curia, determining the meaning of the law does not fall within the scope of application of a principle which allows the parties a free hand to determine the scope of the case.
It follows that the admissibility of a plea in law does not depend on the use of specific terminology. It is sufficient for the wording of the application to set out the substance of the plea with sufficient clarity. Nor does the admissibility of a plea depend on specific legal rules or principles being relied on. It is for the EU judicature to identify the relevant provisions and to apply them to the facts put before it by the parties, even if the parties do not refer to the provisions in question or rely on different provisions. It also follows that, even if the applicant has raised a plea in law in an admissible manner, the Court may not, when examining that plea, restrict itself to the arguments put forward by the applicant, but must conduct a full analysis of the plea, taking account of all applicable legal rules and principles, precisely so that it does not base its decision on erroneous legal considerations.
(see paras 35-37)
3.      In the absence of specific regulations applicable to officials and servants or stipulations in that regard in the rules of procedure of the institutions concerned, no document exists on the basis of which it could be concluded that the relationship between those institutions and their officials and servants is completely excluded from the scope of Regulation No 1 determining the languages to be used by the European Economic Community. That is all the more the case with regard to the relationship between the institutions and the candidates in an external competition who are not, in principle, either officials or servants.
(see para. 56)
4.      A notice of open competition which provides that candidates are required to communicate with the European Personnel Selection Office (EPSO) in a language chosen by them from German, English and French infringes Article 2 of Regulation No 1, and must therefore be annulled. Applications are, without any doubt, documents addressed to the institutions which established EPSO from persons coming under the jurisdiction of a Member State, namely candidates. Therefore, under Article 2 of Regulation No 1, these persons (the candidates) are entitled to choose the language in which such documents are drawn up from all of the official languages listed in Article 1 thereof. In so far as a notice limits that choice to German, English and French, it infringes those provisions. The same is true of other possible communications that candidates may have to send to EPSO concerning the competition covered by the notice.
Furthermore, communications sent by EPSO to each candidate who submitted an application constitute replies, within the meaning of Article 2 of Regulation No 1, to the application and to other documents that may be sent to it by the candidate in question. Accordingly, pursuant to this provision, such replies must be drawn up in the language chosen by the candidate, from all of the official languages, for the drafting of his documents. Compliance by EPSO with that obligation is even more important where the notice of competition provides for selection based on qualifications, carried out on the basis of the information given in the application. It is therefore important that this information be given in the language chosen by each candidate, as the case may be his mother tongue, and not in a language which, for some candidates, will not be the language in which they best express themselves, despite having a satisfactory knowledge of that language.
(see paras 60-63)
5.      It is true that, under the principle of autonomy of the EU institutions as to their choice of officials and servants, laid down in Article 2 of the Staff Regulations, those institutions have a wide margin of discretion and autonomy as regards the creation of posts for officials or servants, the choice of the official or servant in order to fill the post created, and the nature of the employment relationship with the servant. However, that autonomy does not release them from the obligation to comply with the applicable provisions of EU law, including those of Article 2 of Regulation No 1, determining the languages to be used by the European Economic Community.
Moreover, the need to comply with the obligations flowing from Regulation No 1 does not prevent the EU institutions from determining themselves, in the exercise of their functional autonomy, their language needs. Article 2 of Regulation No 1 does not preclude a provision in a competition notice requiring candidates in the competition to have specific knowledge of languages. It provides only that, even in such a situation, the author of the competition notice must communicate with candidates in the official language chosen by them, and not in a language chosen from a smaller group of languages, even if candidates are required to possess knowledge of at least one of those languages to be able to participate in the competition. In that regard, Article 2 of Regulation No 1 makes no exceptions to the obligation which it imposes, either for reasons linked to the interest of the service or for other reasons.
(see paras 67-69, 104)
6.      See the text of the decision.
(see paras 81, 82)
7.      Limiting the choice of the second language of candidates in a competition to a restricted number of languages, to the exclusion of the other official languages, constitutes discrimination on grounds of language. It is clear that such a provision 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.
In that regard, whilst Article 28(f) of the Staff Regulations provides that satisfactory knowledge of another language is required to the extent necessary to the duties which the candidate is called upon to perform, it does not indicate the criteria which may be taken into consideration to limit the choice of that language amongst the official languages mentioned in Article 1 of Regulation No 1. Similarly, whilst under Article 1(1)(f) of Annex III to the Staff Regulations, the competition notice may where applicable lay down the knowledge of languages required in view of the special nature of the posts to be filled, no general authorisation to derogate from the requirements of Article 1 of Regulation No 1 can be derived from that provision.
Consequently, since Article 1d of the Staff Regulations prohibits not only discrimination based on nationality, but also several other forms of discrimination, including that based on language, only the objective of having immediately operational candidates is, possibly, capable of justifying discrimination based on language. By contrast, such discrimination is not an appropriate way of facilitating the recruitment of officials of the highest standards of ability, efficiency and integrity, since such standards are obviously independent of a candidate’s knowledge of languages.
In those circumstances, it is not sufficient to defend the principle of such a limitation by referring to the large number of languages recognised under Article 1 of Regulation No 1 as official languages and working languages of the European Union and by citing the resulting need to choose a smaller number of languages, even a single language, as languages for internal communication or ‘vehicular languages’. It is also necessary to provide objective justification for the choice of one or more specific languages, to the exclusion of all others. Thus, such a limitation cannot be regarded as objectively justified and proportionate where these languages include, in addition to a language knowledge of which is desirable or even necessary, other languages which do not confer any particular advantage. If one accepts, as an alternative to the only language which it is advantageous for a newly recruited official to know, other languages knowledge of which is not beneficial, there is no valid reason not also to accept all other official languages.
In any event, even if the members of a given institution only use one or some languages in their deliberations, it cannot be presumed, without further explanation, that a newly recruited official who does not master any of these languages would be incapable of immediately carrying out useful work in the institution concerned.
(see paras 87, 88, 93, 94, 103, 117, 135, 146)
8.      It is true that, as regards matters falling within the exercise of a discretion, the principle of non-discrimination is infringed where the institution concerned treats a person differently in a manner which is arbitrary or manifestly inappropriate having regard to the objective of the rules. However, that does not preclude any review by the EU judicature of possible requirements relating to specific knowledge of languages imposed on candidates in competitions for the recruitment of EU officials or servants. On the contrary, it is for the EU judicature to check that such requirements are objectively justified and proportionate to the actual needs of the service, in other words that they are not arbitrary or manifestly inappropriate in the light of the objective pursued.
(see paras 105, 106)
9.      See the text of the decision.
(see para. 151)