Case C‑566/10 P

Italian Republic

v

European Commission

‛Appeal — Rules on languages — Notices of open competitions for the recruitment of administrators and assistants — Publication in full in three official languages — Language of the tests — Choice of the second language among three official languages’

Summary — Judgment of the Court (Grand Chamber), 27 November 2012

Officials — Competitions — Notice of open competition — Publication in full in the Official Journal only in certain official languages — Unlawful — Discrimination on the ground of language — Breach of principle of proportionality — Publication of amendments in all the official languages — No effect

In the absence of specific regulations applicable to officials or other servants or stipulations in that regard in the rules of procedure which may be adopted by the institutions, no document exists on the basis of which it can be concluded that the relationship between those institutions and their officials and other servants, of which notices of competition form part, is completely excluded from the scope of Regulation No 1, determining the languages to be used by the European Economic Community, Article 1 of which refers explicitly to the working languages of the institutions. That is all the more the case with regard to the relationship between the institutions and the candidates for an external competition who are not, in principle, either officials or servants. (see paras 67-69)

In accordance with Article 1(2) of Annex III to the Staff Regulations, read in conjunction with Article 5 of Regulation No 1, determining the languages to be used by the European Economic Community, which provides that the Official Journal of the European Union is to be published in all the official languages, notices of open competition must be published in all the official languages. Since those provisions do not provide for any exceptions, the later publication, in all the official languages, of amendments containing only summary information does not remedy the lack of publication of the competition notices in full in the Official Journal in all the official languages. In any event, even if those amendments contain a certain amount of information concerning the competition, proceeding upon the assumption that citizens of the Union read the Official Journal of the European Union in their mother tongue and that that language is one of the official languages of the European Union, a potential candidate whose mother tongue is not one of the languages of full publication of the contested competition notices would have to obtain that journal in one of those languages and read the notice in that language before deciding whether to apply to take part in one of the competitions. Such a candidate would be at a disadvantage compared to a candidate whose mother tongue was one of the languages of full publication of the contested competition notices, both with regard to the correct understanding of those notices and concerning the period of time to prepare and send an application to take part in those competitions. That disadvantage is the consequence of the difference in treatment on the ground of language, prohibited by Article 21 of the Charter of Fundamental Rights of the European Union and by Article 1d(1) of the Staff Regulations, which is caused by those publications. The practice of restricted publication does not observe the principle of proportionality and amounts, therefore, to discrimination on the ground of language, prohibited by Article 1(d) of the Staff Regulations. (see paras 71-75, 77)

Limiting the choice of a language as a second language required for participation in an open competition of the European Union may be justified in the interest of the service. In particular, Article 1(d) of the Staff Regulations authorises limitations on the principles of non-discrimination and proportionality. The interest of the service must however be objectively justified and the required level of knowledge of languages must be proportionate to the genuine needs of the service. In addition, the rules limiting the choice of the second language must provide for clear, objective and foreseeable criteria so that the candidates may know, sufficiently in advance, what the language requirements are and can prepare to take part in the competitions in the best possible circumstances. In so far as a legitimate objective of general interest may be relied upon and be shown to be genuine, a difference in treatment on the ground of language must also observe the principle of proportionality, that is to say, it must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it. In accordance with the first paragraph of Article 27 of the Staff Regulations, the recruitment of officials is to be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. Since that objective can best be achieved when the candidates are allowed to sit the selection tests in their mother tongue or in the second language of which they think they have the best command, it is, in that regard, for those institutions to weigh the legitimate objective justifying the limitation of the number of languages of the competition against the objective of identifying the most competent candidates. Furthermore, an official’s knowledge of languages is an essential element of his career and the appointing authorities have various methods at their disposal in order to check that knowledge and the efforts made by officials to put their knowledge into practice and, possibly, to improve that knowledge. In that regard, it is therefore a matter for the institutions to weigh the legitimate objective justifying the limitation of the number of languages of the competitions against the opportunities for recruited officials of learning, within the institutions, the languages necessary in the interest of the service. (see paras 87, 88, 90, 91, 93, 94, 96, 97)