62020TJ0631_RES
Case T‑631/20
MZ
v
European Commission
Judgment of the General Court (Eighth Chamber, Extended Composition), 6 July 2022
(Civil service – Officials – Competition EPSO/AD/363/18 for the recruitment of administrators in the field of taxation – Restriction of the choice of the second language in which tests are conducted – Non-inclusion on the reserve list – Plea of illegality – Admissibility – Discrimination based on language – Special nature of the posts to be filled – Justification – Interests of the service – Proportionality)
Actions brought by officials – Plea of illegality – Measures the illegality of which may be pleaded – Competition notice – Language regime – Whether permissible – Conditions – Direct legal connection between the contested measure and the competition notice in question – Scope – Need to demonstrate the possibility of obtaining a better score in the tests in the absence of the language restriction
(Arts 266, 270 and 277 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 31-48, 51-54)
Officials – Notice of open competition – Languages of participation in tests – Restriction of the choice of the second language – Discrimination based on language – Justification based on the interest of the service in recruiting people who are immediately operational – Whether permissible – Condition – Connection between the nature of the posts to be filled and the required knowledge of languages
(Staff Regulations, Arts 1d and 28(f) and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)
(see paragraphs 69-71, 77-94)
Résumé
On 11 October 2018, the European Personnel Selection Office (EPSO) published the notice of open competition EPSO/AD/363/18. The competition sought to draw up reserve lists for the recruitment of administrators in the fields of customs and taxation. The competition notice required inter alia, as a condition of eligibility for the competition, knowledge of at least two official EU languages, the second of which had to be English or French.
The applicant, MZ, an Italian national, applied as a candidate in that competition and chose Italian as the first language and French as the second language (‘the second language’). She was invited to the assessment centre where she participated in the tests, which were held in the latter language.
The chairperson of the selection board subsequently informed the applicant of the selection board’s decision not to include her name on the reserve list on the ground that she had not obtained the pass mark in each of the tests. Following the request for review submitted by the applicant, the selection board adopted a decision (‘the contested decision’) confirming its initial decision.
The applicant therefore brought an action for annulment before the General Court. In this regard, she relies inter alia on a plea in law alleging that the language regime provided for in the competition notice is illegal.
The Court upholds the action and provides clarifications regarding the admissibility of a plea of illegality in respect of a competition notice raised by an unsuccessful candidate.
Findings of the Court
The Court states, first of all, that where a candidate is affected by a competition notice, which is a measure of general application, without having been in a position to ask that it be declared void in an action which would undoubtedly have been admissible, the admissibility of a plea of illegality does not require a close connection to be demonstrated between the reasoning of the contested individual decision and the plea of illegality in relation to the competition notice, which has not been challenged in good time.
In that case, in the light of the principle of effective judicial protection, according to which it must be possible to raise a plea of illegality against a measure against which an action for annulment cannot be brought, the admissibility of the plea of illegality in respect of a measure of general application is subject to the double condition that the individual measure being challenged was adopted in direct implementation of the measure of general application and that the applicant has an interest in challenging the individual decision which is the subject of the main action.
Second, with regard to the first condition, under which it must be established whether the contested decision was adopted in direct implementation of the competition notice, the provisions of an act of general application that constitute the basis of the individual decision or that have a direct legal connection with such a decision may legitimately form the subject matter of a plea of illegality. That is the case with a competition notice forming both the legal basis and the basis of assessment for the competition selection board and laying down the procedure by which the selection board adopted the contested decision.
As for the second condition concerning the interest in bringing proceedings, the plea of illegality must be likely, if successful, to procure an advantage for the party raising it. However, on this point, at the risk of imposing on it a burden of proof which it is impossible to discharge, that party cannot be required to demonstrate that, pursuant to a judgment annulling a measure, she would necessarily obtain a better score in the assessment centre tests, but only that such a possibility is not ruled out. In this regard, in the case at issue, the preference given to English or French, to the exclusion of all the other official EU languages, is likely to have conferred an advantage in the tests on candidates for whom one of those two languages is the language in which they are most competent, to the detriment of the other candidates for whom that is not the case. The plea of illegality is therefore admissible.
Lastly, the Court examines whether the justification for restricting the choice of the second language by the need to recruit people who are immediately operational is permissible. In this regard, the finding that English and French are probably the two languages which are most widely known within the directorates in which the successful candidates are likely to be recruited is not sufficient, in itself, to establish the knowledge of languages that could objectively be required in the light of the specific duties which the recruited officials will be expected to perform. It must be ascertained whether, in view of the special nature of the posts to be filled, knowledge of only one of those two languages, as a second language, actually enables a newly recruited official to be immediately operational and, if necessary, it must be verified whether the requirement to sit all the assessment centre tests in the second language was appropriate for meeting that need. In the case at issue, although it cannot be ruled out, given the widespread knowledge of French within the institution concerned, that a successful candidate having only a satisfactory knowledge of French could eventually be operational, such a successful candidate could not, in view of the special nature of the posts to be filled, be expected to be immediately operational as required by the competition notice.