European Commission v Italian Republic.
Date: 2019-03-26
44


It is settled case-law that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions of the European Union, whatever their nature or form, which are intended to have binding legal effects (see, in particular, judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36; of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54; of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 47; and of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31; see also, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; order of 4 October 1991, Bosman v Commission, C‑117/91, EU:C:1991:382, paragraph 13, and judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 44).
45


Since confirmatory and purely implementing measures do not produce such legal effects, they fall outside the scope of that article (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited).
57


Moreover, with regard to the considerations set out in paragraphs 68 and 69 of the judgment under appeal, they were expressed by the General Court for the sake of completeness, in the event that the notices of competition at issue were to be classified as measures confirming or purely implementing the general rules governing open competitions. In the light of the finding in paragraph 55 of the present judgment, those considerations cannot, even if vitiated by errors, lead to the annulment of the judgment under appeal. The arguments against them are therefore ineffective (see, to that effect, judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 69 and the case law cited).
61


It follows that the arguments put forward in the first to third parts of the first ground of appeal are directed against grounds of the judgment under appeal included for the sake of completeness and cannot, as such, lead to its annulment. They must therefore be rejected as ineffective (see, to that effect, judgment of 24 October 2013, Kone and Others v Commission, C‑510/11 P, not published, EU:C:2013:696, paragraph 69 and the case-law cited).
88


In that regard, it should be recalled, first, that, according to the settled case-law of the Court, EU institutions must enjoy a wide discretion in the organisation of their departments and, in particular, in the determination of the criteria of ability required for the positions to be filled and, in the light of these criteria and in the interests of the service, the conditions and procedure for organising competitions (see, to that effect, judgments of 16 October 1975, Deboeck v Commission, 90/74, EU:C:1975:128, paragraph 29; of 9 February 1984, Fabius v Commission, 39/83, EU:C:1984:52, paragraph 7; and of 9 October 2008, Chetcuti v Commission, C‑16/07 P, EU:C:2008:549, paragraph 76). Accordingly, the institutions, like EPSO, where the latter exercises powers devolved to it by the institutions, must be able to determine, on the basis of their needs, the abilities that it is appropriate to require of candidates taking part in competitions in order to organise their departments in a useful and reasonable manner.
90


Thus, the broad discretion enjoyed by the EU institutions with regard to the organisation of their departments, like EPSO under the conditions referred to in paragraph 88 of the present judgment, is governed in mandatory terms by Article 1d of the Staff Regulations, so that differences of treatment based on language resulting from restrictions on the language regime of a competition to a limited number of official languages can only be accepted if such a restriction is objectively justified and proportionate to the real needs of the service (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 88). In those circumstances, the General Court correctly held, in paragraph 107 of the judgment under appeal, that EPSO’s discretion does not exempt it from the obligation to comply, in particular, with Article 1d of the Staff Regulations.
91


As regards, secondly, the judicial review which the General Court is required to exercise in respect of a difference in treatment based on language, such as that resulting from the restriction of the choice of language 2 of the competition to a limited number of official languages of the Union, it must be recalled, as is clear from the case-law cited in the previous paragraph, that such a restriction may, in principle, be justified on the basis of the interests of the service, provided that such interests are objectively justified and that the level of language knowledge required is proportionate to the actual needs of the service. Moreover, it is apparent from that case-law that the rules restricting the choice of language 2 of the competition must be based on ‘clear, objective and foreseeable’ criteria (see, to that effect, judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraphs 88 and 90).
97


Moreover, inasmuch as, by that argument, the Commission intends to call into question the General Court’s analysis, in paragraphs 110 to 117 of the judgment under appeal, of the content of the general rules governing open competitions, including the general guidelines on the use of languages, and of the notices of competition at issue and the Commission’s pleadings before it, it should be recalled that, according to settled case-law, it is apparent from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the appeal is limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts thus does not, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 50). The Commission did not plead such a distortion.
104


As the Court has held, even in the case of complex assessments, the EU judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of supporting the conclusions drawn from it (see, to that effect, judgments of 15 February 2005, Commission v Tetra Laval, C-12/03 P, EU:C:2005:87, paragraph 39; of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 54; and of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 59).
124


In that regard, although it is not excluded that the interests of the service may justify restricting the choice of language 2 of the competition to a limited number of official languages which are most widely known in the European Union (see, by analogy, judgment of 9 September 2003, Kik v OHIM, C‑361/01 P, EU:C:2003:434, paragraph 94), even in the context of competitions of a general nature, such as that referred to in ‘Notice of Open Competition — EPSO/AD/276/14 — Administrators (AD 5)’, such a restriction must nevertheless, having regard to the requirements set out in paragraphs 92 and 93 of the present judgment, be based on elements which are objectively verifiable, both by candidates and by the Courts of the European Union, such as to justify the knowledge of languages required, which must be proportionate to the actual needs of the service.