JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

5 December 2012 ( )

(Civil service – Open competition – Competition notice EPSO/AD/147/09 – Constitution of a reserve list of administrators of Romanian citizenship – Thorough knowledge of the official language of Romania – Hungarian-speaking minority in Romania – Non-admission to the oral test – Principles of equal treatment and non-discrimination – Scope)

In Case F-29/11,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

BA, residing in Wezembeek-Oppem (Belgium), initially represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers, and subsequently by S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers,

applicant,

v

European Commission, represented initially by B. Eggers and P. Pecho, acting as Agents, and subsequently by B. Eggers, acting as Agent,

defendant,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

composed of H. Kreppel, President, E. Perillo (Rapporteur) and R. Barents, Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 10 July 2012,

gives the following

Judgment

1 By an application lodged at the Registry of the Tribunal on 21 March 2011 BA brought the present action seeking annulment of the decision of the Director of the European Personnel Selection Office (EPSO) of 10 December 2010 rejecting her complaint and of the decision of the selection board in competition EPSO/AD/147/09 not to admit her to the oral test in that competition.

Legal context

2 Article 1d of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) states:

‘1. In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.

…

5. Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. This provision shall not apply in disciplinary proceedings.

6. 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. Such objectives may in particular justify stipulating a mandatory retirement age and a minimum age for drawing a retirement pension.’

3 Article 27 of the Staff Regulations states:

‘Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the [European Union].

No posts shall be reserved for nationals of any specific Member State.’

4 Article 28 of the Staff Regulations provides:

‘An official may be appointed only on condition that:

(a) he is a national of one of the Member States of the [European Union], unless an exception is authorised by the appointing authority, and enjoys his full rights as a citizen;

…

(f) he produces evidence of a thorough knowledge of one of the languages of the [European Union] and of a satisfactory knowledge of another language of the [European Union] to the extent necessary for the performance of his duties.’

5 Under Article 1(1) of Annex III to the Staff Regulations:

‘1. Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.

It must specify:

…

(f) where applicable, the knowledge of languages required in view of the special nature of the posts to be filled;

…’

6 Article 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59), in the version applying in this case, provides:

‘The official languages and the working languages of the institutions of the Union shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.’

7 Article 2 of Regulation No 1 provides:

‘Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the [European Union] may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language.’

8 Article 3 of Regulation No 1 provides:

‘Documents which an institution of the [European Union] sends to a Member State or to a person subject to the jurisdiction of a Member State shall be drafted in the language of such State.’

9 Article 6 of Regulation No 1 provides:

‘The institutions of the [European Union] may stipulate in their rules of procedure which of the languages are to be used in specific cases.’

10 Article 8 of Regulation No 1 provides:

‘If a Member State has more than one official language, the language to be used shall, at the request of such State, be governed by the general rules of its law.

…’

11 Article 2 of Council Regulation (EC, Euratom) No 401/2004 of 23 February 2004 introducing, on the occasion of the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, special temporary measures for recruitment of officials of the European Communities (OJ 2004 L 67, p. 1) provides:

‘Until 31 December 2010, general competitions shall also be held for the recruitment of officials having one of the existing 11 official languages as their main language; such competitions shall simultaneously cover all these languages.’

12 Council Regulation (EC, Euratom) No 1760/2006 of 28 November 2006 introducing, on the occasion of the accession of Bulgaria and Romania to the European Union, special temporary measures for recruitment of officials of the European Communities (OJ 2006 L 335, p. 5) provides:

‘…

(1) On the occasion of the forthcoming accession of Bulgaria and Romania to the European Union, special temporary measures should be adopted that depart from the Staff Regulations ….

(2) Given the relative sizes of the countries acceding and the number of persons potentially involved, these, albeit temporary, measures should remain in force for a substantial period. 31 December 2011 appears to be the most suitable expiry date in this regard.

(3) Given the need to enable the planned recruitments to take place as soon as possible after accession, this Regulation should be adopted before the actual accession date.

…

Article 1

1. Notwithstanding the second and third paragraphs of Article 4, Article 7(1), the second paragraph of Article 27 and points (a) and (b) of Article 29(1) of the Staff Regulations, vacant posts may be filled after the actual date of accession of the countries concerned, and until 31 December 2011, by the appointment of Bulgarian and Romanian nationals, within the limit of the number of posts allotted and taking into account the budgetary discussions.

2. Appointments to posts shall be made:

(a) for all grades, after the actual date of accession;

(b) except for senior officials, (Directors-General or their equivalent in grade AD 16 or AD 15 and Directors or their equivalent in grade AD 15 or AD 14), following competitions on the basis of both qualifications and tests organised as specified in Annex III to the Staff Regulations.

…’

13 On 21 January 2009 notice of open competition EPSO/AD/147/09, organised by EPSO to constitute a reserve list of administrators (AD 5) of Romanian citizenship in the field of European public administration (OJ 2009 C 14 A, p. 1), was published, amended by a corrigendum published on 13 March 2009 (OJ 2009 C 59 A, p. 2) (‘the competition notice’).

14 Paragraph 2(c) of Section I B of the competition notice, entitled ‘Knowledge of languages’, states:

‘You must have:

main language (language 1)

…

– a thorough knowledge of Romanian …

second language (language 2)

– a satisfactory knowledge of English, French or German.

…’

15 Paragraph 1 of Section III of the competition notice, entitled ‘Written tests – Marking’, states:

‘You will take written tests (a) and (b) in English, French or German (language 2).

(a) A test comprising a series of multiple-choice questions to assess your specific knowledge in the field in question.

…

(b) A test on a subject of your choice in the field in question …

(c) Drafting a brief memo in your main language (language 1) setting out the arguments and conclusions of written test (b). This is designed to test your command of your main language in terms of both drafting and presentation.

This test will be marked out of 10 (pass mark: 8).

…’

16 Furthermore, the Annex to the competition notice states:

‘…

Requests for review

Within 10 days of the letter informing you of the decision being sent to you online, send a letter stating your case to …’

Background to the dispute

17 The applicant, who has Romanian and Hungarian nationality, belongs to the Hungarian minority in Romania.

18 She applied, as a Romanian citizen, for open competition EPSO/AD/147/09, organised by EPSO to constitute, inter alia, a reserve list of administrators of Romanian citizenship in the field of ‘European public administration’. Having passed the admission tests, the applicant was admitted to sit the written tests.

19 By a letter of 21 April 2010, EPSO informed the applicant of her results in the written tests. She had scored above the pass mark for tests (a) and (b), for which candidates used their chosen language 2 (English, French or German), of which they were required by the competition notice to have a ‘satisfactory knowledge’. However, the applicant had obtained an eliminatory mark of 6/10 in test (c), for which language 1 (Romanian) was used, of which the competition notice required a ‘thorough knowledge’.

20 In reply to a request for review submitted on 21 April 2010, EPSO informed the applicant, by a letter of 18 June 2010, that, after reviewing her paper in written test (c), the selection board confirmed its decision not to admit her to the oral test.

21 By an email of 7 July 2010, the applicant requested that her position be re-examined, since she considered that she had suffered discrimination as a result of having to sit written test (c) in Romanian rather than Hungarian, which was her mother tongue.

22 By a letter of 20 September 2010, registered by EPSO the following day, the applicant lodged a complaint under Article 90(2) of the Staff Regulations, challenging the selection board’s decision to award her the mark of 6/10 for written test (c), as well as the legality of the competition notice.

23 By a letter of 10 December 2010, the Director of EPSO, in his capacity as the appointing authority, rejected the applicant’s complaint (‘the decision rejecting the complaint’).

Forms of order sought

24 The applicant claims that the Tribunal should:

– annul the decision rejecting the complaint;

– in so far as is necessary, annul the decision of the competition selection board to award the applicant the eliminatory mark of 6/10 for written test (c);

– organise a fresh written test (c);

– order the European Commission to pay the costs.

25 The Commission submits that the Tribunal should:

– dismiss the action;

– order the applicant to pay the costs.

Law

The subject matter of the action

26 In her first head of claim the applicant seeks annulment of the decision rejecting her complaint.

27 According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (see, to that effect, the judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8).

28 In the present case, the complaint of 20 September 2010, which was rejected by the appointing authority on 10 December 2010, was directed against the selection board’s decision to award the applicant the mark of 6/10 in written test (c). The decision rejecting the complaint lacks any independent content, in so far as it merely confirms the decision taken on 18 June 2010, following reconsideration by the selection board, and in doing so employs reasoning which reiterates in substance, but more fully, the reasoning set out in that decision (judgment of 1 July 2010 in Case F–45/07 Mandt v Parliament, paragraph 43).

29 Moreover, when a party whose request to be admitted to a competition organised by the Union institutions has been rejected seeks reconsideration of that decision on the basis of a specific provision binding on the administration, it is the decision taken by the selection board after reconsideration which must be regarded as the act adversely affecting him within the meaning of Article 90(2) or, as the case may be, Article 91(1) of the Staff Regulations (judgment of 1 July 2010 in Case F–40/09 Časta v Commission, paragraph 27 and the case-law cited).

30 In the present case, in accordance with the annex to the competition notice, on 21 April 2010 the applicant requested a review of the selection board’s decision not to admit her to the oral test.

31 By a letter of 18 June 2010, EPSO replied to the applicant that the selection board had met on 11 June 2010 and had decided to confirm the mark of 6/10 which she had obtained in written test (c), as well as the decision not to admit her to the oral test.

32 The decision of 18 June 2010, which was notified to the applicant on the same day, must be regarded, in the present case, as the act adversely affecting her within the meaning of Article 90(2) of the Staff Regulations.

33 It follows from the foregoing that the present action must be regarded as seeking annulment of the decision of 18 June 2010 taken following review (‘the contested decision’).

Admissibility

Arguments of the parties

34 The Commission contends, principally, that the action is manifestly inadmissible. The applicant contested the decision not to admit her to the subsequent stage of the competition not on account of a manifest error of assessment in the marking of written test (c), but solely because of the fact that she was unable to use Hungarian, her mother tongue, in that test. In so far as it required the test to be conducted solely in Romanian, the competition notice was thus the decision which in fact adversely affected the applicant. Since she failed to bring the action within the requisite period from publication of the competition notice, the applicant’s action was out of time.

35 The applicant takes the view that a competition notice is not, as a rule, an act which has adverse effects and considers that, in the present case, the competition notice does not directly exclude her from the tests. However, she contends that she may rely on irregularities which occurred in the course of the competition, even if the origin of those irregularities lay in the competition notice, in an action directed against an individual decision adversely affecting her, and that, consequently, she is entitled to contest the competition notice indirectly.

36 Furthermore, in the decision rejecting her complaint, the appointing authority stated that the complaint was inadmissible for infringement of the time limits laid down in the Staff Regulations. The applicant was informed of the contested decision on 18 June 2010 and should therefore have lodged a complaint by 18 September 2010 at the latest, and not on 20 September 2010.

37 The applicant relies on the first paragraph of Article 100(2) of the Rules of Procedure, according to which ‘(i)f the period would otherwise end on a Saturday, Sunday or official holiday, it shall be extended until the end of the first following working day’. As 18 September 2010 was a Saturday, the applicant claims that the action is admissible, since the complaint was lodged on Monday, 20 September 2010, the first working day after the end of the period in question.

38 In its defence, the Commission does not claim that the complaint was lodged out of time.

Findings of the Tribunal

39 In the light of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of closely-linked decisions, an applicant is entitled to rely 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 itself, in an action against a subsequent individual decision, such as a decision not to admit him to the tests (judgment of 11 August 1995 in Case C-448/93 P Commission v Noonan, paragraph 19, and judgment of 14 April 2011 in Case F-82/08 Clarke and Others v OHIM, paragraph 79).

40 In such a procedure, an applicant cannot be expected to bring as many actions as there are acts which may have affected him adversely (Commission v Noonan, cited above, paragraph 17).

41 It has also been held that there is no need to draw distinctions based on the degree of clarity and precision of the competition notice (Commission v Noonan, cited above, paragraph 19).

42 Lastly, it has been stated that a competition notice may also, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the applicant’s candidature, it constitutes a decision adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations (Clarke and Others v OHIM, cited above, paragraph 79).

43 In other words, even if it is accepted, merely for the purposes of argument, that the competition notice could have been disputed by the applicant through an action for annulment, that fact alone does not either preclude the applicant from bringing proceedings against the contested decision or, for the sake of completeness, render inadmissible pleas in law seeking, where relevant, to dispute the legality of the competition notice.

44 Furthermore, the complaint was not out of time.

45 Since the decision taken by the selection board after reconsideration must be regarded as the act adversely affecting the applicant, it is also that decision, taken after reconsideration, which sets the time-limits running for lodging a complaint and bringing an action (Časta v Commission, cited above, paragraph 27).

46 The parties agree that the applicant was notified of the contested decision on 18 June 2010 and that the complaint against that decision was lodged on 20 September 2010.

47 The first paragraph of Article 100(2) of the Rules of Procedure, to which the applicant refers, does not apply to the pre-litigation procedure.

48 In the absence of specific rules concerning the time limits referred to in Article 90 of the Staff Regulations themselves, reference should be made to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ, English Special Edition 1971(II), p. 354) (order of 8 July 2009 in Case F-62/08 Sevenier v Commission, paragraph 27). Article 3(4) of that Regulation provides that if the last day of the period concerned is a public holiday, Sunday or Saturday, the period is to end with the expiry of the last hour of the following working day.

49 In the present case, since the last day of the period concerned, 18 September 2010, was a Saturday, the period ended on 20 September 2010. The complaint was therefore not out of time.

50 In the light of the foregoing, the action must be regarded as admissible.

Substance

51 The applicant states that she is relying, in support of her action, on infringement of:

– the principles of equal treatment and non-discrimination;

– Article 1d(1), (5) and (6) of the Staff Regulations;

– Article 2 TEU;

– Article 21 of the Charter of Fundamental Rights of the European Union;

– Articles 3, 4, 5, 10 and 19 of the Framework Convention for the Protection of National Minorities, concluded in Strasbourg on 1 February 1995 (‘the Framework Convention’).

Pleas alleging infringement of the principles of equal treatment and non-discrimination and infringement of Article 1d(1), (5) and (6) of the Staff Regulations.

52 These two pleas should be considered together.

– Arguments of the parties

53 The applicant claims that the fact that she was unable to sit written test (c) in her main language, Hungarian, constitutes an infringement of the principles of equal treatment and non-discrimination.

54 She points out that her mother tongue and main language is Hungarian, which is an official language of the European Union. Although not an official language of Romania, Hungarian is nevertheless recognised by Romania as the language of communication used by the Hungarian minority. Romania thereby complies with the objective of the European institutions of protecting national minorities. The applicant considers that the Hungarian minority in Romania has continually acquired new rights over time, including the right for its members to be taught in Hungarian. She points out that she completed her primary, secondary and university education in Hungarian and that the degree she obtained at the end of her university course confers on her the same rights in Romania as those granted to persons having obtained the same degree in Romanian.

55 Consequently, the fact that she was unable to sit written test (c) in Hungarian placed her, on an objective view, at a disadvantage compared with her fellow citizens who had received their school and university education in Romanian.

56 She considers that, in the circumstances of the present case, candidates should be given the opportunity to choose between the languages spoken in Romania, since they are official languages of the European Union.

57 In support of that argument the applicant relies on the fact that notice of open competition EPSO/AD/53/06 (OJ 2006 C 172 A, p. 3), reserved for Cypriot citizens pursuant to Article 2 of Regulation No 401/2004, required a thorough knowledge of Greek as the main language, although it provided, by way of exception, that Cypriot nationals who did not have Greek as their main language could choose one of the other official languages of the European Union, in which case the second language had to be different from the main language chosen.

58 According to the applicant, discrimination also resulted from the fact that, in order to participate in the competition at issue in the present case, the Commission required candidates to have both the nationality and the language of the Member State concerned. She considers that, if it was necessary to recruit citizens speaking Romanian, there was no need to restrict recruitment solely to persons having Romanian nationality. If, on the other hand, the aim was to recruit Romanian citizens, the only criterion should have been that of nationality.

59 The applicant points out that, under Article 1d of the Staff Regulations, the onus is, in any event, on the Commission to prove, first, that the decision to make candidates sit written test (c) in Romanian did not constitute a breach of the principle of equal treatment, and, second, that any limitation of that principle was justified on objective and reasonable grounds.

60 As regards whether the difference in treatment was justified, in particular by the objective cited by the Commission of achieving a reasonable geographical balance, the applicant considers that it was not lawful to exclude Romanian candidates belonging to the Hungarian minority on the ground that Romania has not declared Hungarian to be an official language under Regulation No 1.

61 She considers that the Commission does not explain why the needs of the service require successful candidates in competition EPSO/AD/147/09 who are appointed as officials to use only Romanian.

62 Furthermore, there is a distinction to be drawn between ‘the interests of the service’ and ‘the general interest in the framework of staff policy’. If the reason for recruiting Romanian officials was the need to communicate with business and other interest groups in the Member States, it would have been useful to recruit persons from the Hungarian minority to communicate with business and other interest groups connected with that minority.

63 Lastly, the applicant points out that she satisfies the requirements of Article 28 of the Staff Regulations, which, in her view, does not impose any condition requiring an official to know the language of the country of which he is a national.

64 The Commission, on the other hand, considers that the applicant has not suffered any unequal treatment and that, in any event, the language requirements of the competition were justified by the interests of the service, satisfied objectives in the general interest in the framework of staff policy and were proportionate.

65 First of all, the Commission points out that a distinction must be drawn between the ‘languages of the European Union’, in other words the languages to be used pursuant to Regulation No 1, and ‘languages spoken in a Member State’. Under Articles 27 and 28 of the Staff Regulations and Regulation No 1, no candidate in a competition can demand to use, in the written tests of that competition, a language other than the languages of the European Union which are relevant under Regulation No 1.

66 Moreover, the institutions have a wide discretion to determine the official languages to be used within their own departments and, consequently, to choose the languages which candidates in a competition may be required to know. Indeed, Article 1(1)(f) of Annex III to the Staff Regulations allows the appointing authority to specify the knowledge of languages required in view of the special nature of the posts to be filled.

67 Furthermore, the Commission relies on the fact that, up to now, Romania has not declared Hungarian as another language of the European Union for the purposes of Article 8 of Regulation No 1.

68 The Commission points out that competition EPSO/AD/147/09 was an ‘enlargement’ competition, specifically organised pursuant to Regulation No 1760/2006, which departs, for a transitional period, for the purposes of the recruitment of Romanian nationals, from the rules of the Staff Regulations, and particularly from Article 27, which prohibits the reservation of posts for nationals of any specific Member State. It was necessary to recruit, as soon as possible, staff who were Romanian nationals and knew Romanian in order to meet operational needs created by the accession of Romania and, in particular, in order to communicate in the language of the European Union to be used in relations with Romania.

69 That being so, the Commission maintains that the requirement for knowledge of Romanian in the disputed competition notice met objectives in the general interest arising from the application of the derogation in Regulation No 1760/2006 and was objectively justified by the interests of the service in the light of Article 1(1)(f) of Annex III to the Staff Regulations in particular.

70 Finally, the Commission points out that candidates in the competition in question were required to have a good command of Romanian, not a perfect command, which de facto allowed Romanian candidates with a mother tongue other than Romanian the possibility of passing written test (c).

– Findings of the Tribunal

71 It should be noted first of all that, in her rejoinder, the applicant argues that Regulation No 1, on which the Commission bases much of its argument, must not contravene the provisions of the Treaties, of any other higher rule of law or of any general legal principle.

72 Even if, just for the sake of argument, such a plea of illegality were closely linked to the complaint and not out of time, the fact remains that there is no supporting information which would enable the Tribunal to examine its merits.

73 Under Article 35(1)(e) of the Rules of Procedure, the application must state the pleas in law and the arguments of fact and law relied on. According to consistent case-law those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the text of the application itself (judgment of 15 February 2011 in Case F-76/09 AH v Commission, paragraph 29).

74 Consequently, in the absence of any indication of the reasons why Regulation No 1 would contravene the provisions of the Treaties, the plea of the illegality of Regulation No 1 raised by the applicant is inadmissible in the light of Article 35(1)(e) of the Rules of Procedure.

75 As for the plea alleging infringement of the principle of equal treatment and non-discrimination, it should be pointed out that the principle of equal treatment, as a general principle of European Union law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 16 December 2008 in Case C-127/07 Arcelor Atlantique et Lorraine and Others, paragraph 23). A breach of the principle of equal treatment, applicable to the law relating to the employment of European Union officials, therefore occurs when two categories of person in the service of the European Union whose factual and legal circumstances disclose no essential difference are treated differently and that difference in treatment is not objectively justified (judgment of 25 February 2010 in Case F-91/08 Pleijte v Commission, paragraph 36).

76 Since the applicant considers that, in the present case, a breach of the principle of equal treatment occurred because different situations were treated in the same way, it must be ascertained whether the circumstances in the present case are factually and legally different.

77 The parties agree that the mother tongue and main language of the applicant, who has Romanian and Hungarian nationality, is in fact Hungarian. However, the applicant’s mother tongue and main language is not the national language of Romania. As the applicant herself acknowledges, Hungarian is also not legally recognised as an official language in the Romanian legal system. At the hearing the Commission produced before the Tribunal documents concerning certain items of Romanian legislation relating in particular to the rights and obligations of persons belonging to the many different national minorities existing in Romania. That legislation includes in particular Romanian Law No 188/1999, Article 6 of which, concerning the recruitment of civil servants, provides that in order to work as a civil servant in Romania a person must fulfil the following terms: ‘a) Has only Romanian citizenship and lives in Romania; b) Knows Romanian language, written and spoken’. Furthermore, the fact that Hungarian is an official language of the European Union is immaterial in the present case, since it concerns an ‘“enlargement” competition’ exceptionally reserved, on the basis of Regulation No 1760/2006, solely for nationals of the Member State concerned. It was, moreover, precisely because of her status as a Romanian national that the applicant applied for and was admitted to take part in the competition. It follows from the foregoing that the applicant’s circumstances were no different from those of the other candidates in the competition in question.

78 Furthermore, competition EPSO/AD/147/09 is clearly different from competition EPSO/AD/53/06 organised exclusively for Cypriot nationals, which the applicant relies on in support of her argument. According to Article 2 of Regulation No 401/2004, general competitions were to be held for the recruitment of officials having as their main language one of the 11 official languages of the European Union on the date when Regulation No 401/2004 was adopted, and those competitions were to cover all these languages simultaneously. Since one of the official languages of the Republic of Cyprus is Turkish, which is, however, not one of the official languages of the Union, it was necessary, as the Commission pointed out at the hearing, to make provision for an alternative language to Greek, which is the other official language of that Member State. The language chosen on that occasion was English, which was also one of the three languages that could be chosen for the second written test. In the circumstances in that case the Commission was obliged to organise general competitions under the conditions laid down by the Union legislature in Regulation No 401/2004. By contrast, Regulation No 1760/2006, on the basis of which competition EPSO/AD/147/09 at issue in the present case was held, does not contain any provision comparable to Article 2 of Regulation No 401/2004.

79 In any event, even if the fact of sitting written test (c) in Romanian may have placed the applicant at a disadvantage compared with candidates who had Romanian as their mother tongue, it should be observed that differences in treatment which are justified on the basis of objective and reasonable criteria proportionate to the aim pursued by the treatment do not constitute a breach of the principle of equal treatment. In that respect it should also be remembered that the criteria capable of justifying different treatment between officials include the interests of the service (Pleijte v Commission, cited above, paragraph 57).

80 Regulation No 1760/2006, the legality of which has not been challenged in the present proceedings, provides the legal basis authorising, as an exception and departing from the applicable rules of the Staff Regulations, the recruitment of Romanian nationals through competitions reserved for them. While it is true that that regulation, unlike Regulation No 401/2004, does not contain any instructions concerning the choice of language, the parties agree, however, that Romania chose only Romanian as an official language within the meaning of Regulation No 1. Moreover, Romanian is, according to the Romanian Constitution, the only official language of that country.

81 Setting a test in Romanian in competition EPSO/AD/147/09 must therefore be regarded as lawful, since it was justified by higher-ranking requirements resulting from Romania’s accession to the European Union. The requirements in question are therefore based on objective and reasonable criteria, and the difference in treatment, in the organisation of an ‘“enlargement” competition’, confined to a transitional period following Romania’s accession, appears proportionate to the aim pursued.

82 It follows from the foregoing that the administrative services of the European Union, such as EPSO, when required to organise, on the basis of a derogation regulation such as Regulation No 1760/2006, competitions reserved for nationals of Romania as a State which has just acceded to the European Union, cannot, without infringing the principle of equal treatment, use a language other than the only official language of that country when it comes to the conduct of certain written selection tests the whole purpose of which is to establish whether candidates have a thorough knowledge of that language. The situation would be different if that Member State formally recognised, under Article 1 of Regulation No 1, for the purposes of its participation in the activities of the institutions of the European Union, a minority language existing in its territory which, although not an official language of that State, was nevertheless an official language of the European Union.

83 Furthermore, requiring ‘a thorough knowledge of Romanian’ as the main language in the competition at issue in the present case, which was reserved for Romanian nationals, was neither arbitrary nor manifestly contrary to the interests of the service.

84 It has already been held that the administration may, where the needs of the service or those of the post require it, legitimately specify the language(s) of which a thorough or satisfactory knowledge is required (judgment of 5 April 2005 in Case T-376/03 Hendrickx v Council, paragraph 26, and judgment of 29 June 2011 in Case F-7/07 Angioi v Commission, paragraph 90 and the case-law cited).

85 As the Commission stated in the course of the present legal proceedings, knowledge of Romanian was useful or even necessary because the administrators recruited would take part in various tasks ‘within the institution and, if necessary, with business and other interest groups in the Member States, and with the other [European Union] institutions’. This information provides objective and reasonable justification for setting a test in Romanian as part of one of the first ‘“enlargement” competitions’ held following Romania’s accession to the European Union.

86 Consequently, it follows from the foregoing that, under Regulation No 1760/2006, the administration was entitled to organise a competition open, in part, solely to Romanian nationals, and to require those candidates, in the interests of the service, to have a thorough knowledge of their national language, that is to say, Romanian, the only official language of Romania for the purposes of Regulation No 1.

87 There is nothing to suggest, therefore, that requiring a thorough knowledge of Romanian in the competition at issue in the present case was manifestly contrary to the interests of the service or resulted in arbitrary differentiation.

88 The pleas alleging a breach of the principles of equal treatment and non-discrimination and infringement of Article 1d(1), (5) and (6) of the Staff Regulations must therefore be dismissed.

Pleas alleging infringement of Article 2 TEU, Article 21 of the Charter and Articles 3, 4, 5, 10 and 19 of the Framework Convention.

89 In so far as the application may be construed as complaining that the Commission infringed Article 2 TEU and Article 21 of the Charter by setting a test in Romanian in competition EPSO/AD/147/09, that plea must, in the absence of any discrimination (see paragraphs 75 to 88 above), be dismissed as unfounded, without any need to examine the question, raised at the hearing, whether Article 2 TEU may have direct effect and create an individual right for the applicant.

90 As regards the reference to Articles 3, 4, 5, 10 and 19 of the Framework Convention in the application, it should be noted that, under Article 35(1)(e) of the Rules of Procedure, the application must state the pleas in law and the arguments of fact and law relied on. For reasons of legal certainty and the sound administration of justice, already mentioned in paragraph 73 of this judgment, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the text of the application itself .

91 Consequently, merely referring, in the application, to Articles 3, 4, 5, 10 and 19 of the Framework Convention cannot be regarded, in the absence of any claim in that respect, as sufficient for the purposes of the Rules of Procedure. It must therefore be dismissed as inadmissible.

The third head of claim

92 In essence, the applicant asks the Tribunal to order the Commission to hold a fresh written competition test (c).

93 Since the Courts of the European Union have no jurisdiction to issue injunctions to the institutions (judgment of 5 July 2011 in Case F-46/09 V v Parliament, paragraph 63, and the case-law cited), the request based on this head of claim must be dismissed.

94 In the light of the foregoing, the whole of the action must be dismissed as unfounded.

Costs

95 Under the terms of Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Title 2, Chapter 8 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. By virtue of Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.

96 It follows from the reasons set out above that the applicant is the unsuccessful party. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Commission.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Dismisses the action.

2. Declares that BA is to bear her own costs and orders her to pay those incurred by the European Commission.





Kreppel Perillo Barents

Delivered in open court in Luxembourg on 5 December 2012.

W. Hakenberg H. Kreppel