EN Official Journal of the European Union C 63/21

Appeal brought on 2 December 2010 by the Italian Republic against the judgment delivered by the General Court (Sixth Chamber) on 13 September 2010 in Joined Cases T-166/07 and T-285/07 Italian Republic v European Commission

(Case C-566/10 P)

2011/C 63/38

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri, agent, and P. Gentili, avvocato dello Stato)

Other part to the proceedings: European Commission, Republic of Lithuania, Hellenic Republic

Form of order sought

— Annul, pursuant to Articles 56, 58 and 61 of the Statute of the Court of Justice of the European Union, the judgment delivered by the General Court of the European Union on 13 September 2010 in Joined Cases T-166/07 and T-258/07 in the actions brought by the Italian Republic for the annulment of: 1. Notice of Open Competition EPSO/AD/94/07 to constitute a reserve pool for 125 posts of Administrator (AD5) in the field of information, communication and the media; 2. Notice of Open Competition EPSO/AST/37/07 to constitute a reserve pool for 110 posts of Assistant (AST3) in the field of communication and information, both published in the English, French and German editions of the Official Journal of the European Communities of 28 February 2007, No C 45A; 3. Notice of Open Competition EPSO/AD/95/07 to constitute a reserve pool for 20 posts of Administrator (AD5) in the field of information science (library/documentation), published only in the English, French and German editions of the Official Journal of the European Communities of 8 May 2007, No C 103;

— itself rule on the action and annul the Notices of Competition referred to above;

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant relies on seven grounds of appeal.

By the first ground of appeal, it is submitted that the judgment under appeal infringes the system of competences for determining the languages to be used deriving from Article 342 TFEU in conjunction with Article 6 of Council Regulation No 1 determining the languages to be used. (1) By Article 6 of Regulation No 1/58, the Council conferred competence on the institutions to stipulate in their rules of procedure which of the languages are to be used in specific cases. However, the General Court unlawfully found that the Commission can determine certain aspects of its rules on the use of languages even in connection with simple notices of competition.

The second ground of appeal is directed against the arguments with which the General Court rejected the plea alleging infringement of Articles 1, 4 and 5 of Regulation No 1/58. The appellant challenges, in several material respects, the argument that notices of competition do not constitute documents of general application within the meaning of Article 4 of the regulation and that they are therefore not covered by the general rules for determining the languages to be used laid down by the regulation. In its view, the argument of the General Court is also undermined indirectly by certain aspects of the Staff Regulations.

By the third ground of appeal, criticism is levelled at the part of the judgment under appeal in which the General Court, with reference to the full publication of the notices of competition in question in only three languages, did not accept that there had been infringement of the principle of non-discrimination established in Article 12 EC (now Article 18 TFEU) and the principle of multilingualism laid down in Article 22 of the Charter of Fundamental Rights of the European Union, Article 6(3) EU, Article 5 of Regulation No 1/58 and Article 1(2) and (3) of Annex III to the Staff Regulations. In the appellant’s view, the subsequent publication in all languages of summary notices referring to the full publication of the notices in French, German and English was not capable of preventing discrimination to the detriment of candidates having languages other than those in question, contrary to the view taken by the General Court. By taking account of the subsequent publication of the notices, the General Court infringed primarily Article 263 TFEU, in that the legality of an act which it is required to review should be assessed by reference only to the wording of the act at the time at which it was adopted and subsequent factors cannot be taken into account.

The fourth ground of appeal relates to the unlawfulness of the choice of only three languages as ‘second language’ for the competition. The reasoning of the General Court in reaching the conclusion that there was no discrimination and that the choices made by the Commission were not inconsistent gives rise, inter alia, to infringement of a series of provisions (Articles 1 and 6 of Regulation No 1/58 and Article 1d(1) and (6), the second paragraph of Article 27 and Article 28(f) of the Staff Regulations) which establish the principle of multilingualism also within the institutions of the European Union. Contrary to the finding of the General Court, it was not for the appellant to demonstrate that no exceptions could be applied but for the Commission to give reasons for its choice in that regard.

By the fifth ground of appeal, it is alleged that the General Court erred in rejecting the claim that the principle of the protection of legitimate expectations was infringed by failing to accept that the Commission’s well-established practice in competition matters may have given rise to a legitimate expectation on the part of potential candidates as regards certain rules governing competitions.

By the sixth ground of appeal, the appellant submits that, by finding that the administration was not required, in the contested notices of competition, to justify the choice of the three languages to be used, the General Court infringed the second paragraph of Article 296 TFEU, which provides that all legal acts are to state the reasons on which they are based.

Finally, the seventh ground of appeal alleges infringement of the substantive rules relating to the nature and purpose of notices of competition, in particular Article 1d(1) and (6), Article 28(f) and the second paragraph of Article 27 of the Staff Regulation. The General Court erred in law in finding that it is not for the selection board alone to assess the language skills of the candidates because the authority which issues the notice could as a preliminary matter make a prior selection of the persons concerned on the basis of purely linguistic criteria.

(1) Council Regulation (EEC) No 1 determining the languages to be used by the European Economic Communities (OJ, English Special Edition Chapter 1952-1958, p. 59).