JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
20 November 2008 (*)
(Rules on languages – Implementing rules for recruitment to the European Union Civil Service − Action for annulment under Article 230 EC – Action brought by a Member State against, first, a Commission decision to publish vacancy notices for senior management posts in English, French and German and, second, a Commission vacancy notice published in those three languages for the post of Director-General of OLAF – Admissibility – Time-limit for bringing an action − Measures against which an action may be brought − Statement of reasons – Articles 12 EC, 230 EC and 290 EC – Regulation No 1 – Articles 1d and 27 of the Staff Regulations – Principle of non-discrimination)
In Case T‑185/05,
Italian Republic, represented by I. Braguglia and M. Fiorilli, avvocati dello Stato,
applicant,
supported by
Kingdom of Spain, represented by F. Díez Moreno, abogado del Estado,
and by
Republic of Latvia, represented initially by E. Balode‑Buraka, and subsequently by L. Ostrovska, acting as Agents,
interveners,
v
Commission of the European Communities, represented by L. Cimaglia and P. Aalto, acting as Agents,
defendant,
APPLICATION for annulment, first, of the decision adopted by the Commission at its 1 678th meeting on 10 November 2004, whereby external publications of the vacancy notices for senior management posts in the Official Journal of the European Union would be in English, French and German for a period that would in principle end on 1 January 2007 and, second, of vacancy notice COM/2005/335 for the post of Director-General (grade A*15/A*16) of the European Anti-Fraud Office (OLAF), published by the Commission on 9 February 2005 (OJ 2005 C 34 A, p. 3),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of M. Vilaras (Rapporteur), President, M. Prek and V. Ciucă, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 3 July 2008,
gives the following
Judgment
Legal context
1 Articles 12 EC, 230 EC, 236 EC, 290 EC and 314 EC, in the versions applying in this case, read:
‘Article 12
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
…
Article 230
The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
…
Article 236
The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment.
…
Article 290
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
…
Article 314
This Treaty, drawn up in a single original in the Dutch, French, German, and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which shall transmit a certified copy to each of the Governments of the other signatory States.
Pursuant to the Accession Treaties, the Czech, Danish, English, Estonian, Finnish, Greek, Hungarian, Irish, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish versions of this Treaty shall also be authentic.’
2 Articles 1 to 6 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 read:
‘Article 1
The official languages and the working languages of the institutions of the Union shall be Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish.
Article 2
Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language.
Article 3
Documents which an institution of the Community 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.
Article 4
Regulations and other documents of general application shall be drafted in the 20 official languages.
Article 5
The Official Journal of the European Union shall be published in the 20 official languages.
Article 6
The institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases.’
3 Article 1d(1) and (6), Article 27, Article 28 and Article 29(2) of the Staff Regulations of Officials of the European Communities, in the version applying in the present case (‘the Staff Regulations’) read:
‘Article 1d
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. …
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.
…
Article 27
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 Communities.
No posts shall be reserved for nationals of any specific Member State.
Article 28
An official may be appointed only on condition that:
…
(f) he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties.
Article 29
…
2. A procedure other than the competition procedure may be adopted by the Appointing Authority for the recruitment of 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) and, in exceptional cases, also for recruitment to posts which require special qualifications.’
4 Article 18 of the Commission Rules of Procedure (C(2000) 3614, OJ 2000, L 308, p. 26), reads:
‘Article 18
Instruments adopted by the Commission in the course of a meeting shall be attached, in the authentic language or languages, in such a way that they cannot be separated, to a summary note prepared at the end of the meeting at which they were adopted. They shall be authenticated by the signatures of the President and the Secretary-General on the last page of the summary note.
Instruments adopted by written procedure shall be attached in the authentic language or languages, in such a way that they cannot be separated, to the day note referred to in Article 12. These instruments shall be authenticated by the signature of the Secretary-General on the last page of the day note.
Instruments adopted by empowerment procedure shall be attached in the authentic language or languages, in such a way that they cannot be separated, to the day note referred to in Article 15. They shall be authenticated by the signature of the Secretary-General on the last page of the day note.
Instruments adopted by delegation procedure, or by subdelegation in accordance with the third paragraph of Article 13, shall be attached in the authentic language or languages, in such a way that they cannot be separated, to the day note referred to in Article 15. They shall be authenticated by a certifying statement signed by the Director-General or Head of Service.
For the purposes of these Rules, “instruments” means any instrument as referred to in Article 14 of the ECSC Treaty, Article 249 of the EC Treaty and Article 161 of the Euratom Treaty.
For the purposes of these Rules, “authentic language or languages” means the official languages of the Communities in the case of instruments of general application and the language or languages of those to whom they are addressed in other cases.’
Background to the case
5 At its 1 678th meeting on 10 November 2004, the Commission adopted a decision (‘the Decision’), the wording of which, as contained in the document which the Italian Republic annexed to its application, was as follows:
‘The Commission has decided that external publications of the vacancy notices for senior management posts in the Official Journal of the European Union shall henceforth be in English, French and German for a period which shall in principle end on 1 January 2007. This decision has been taken in the light of available translation capacity within the Directorate-General for Translation, takes into account the procedural rules adopted for the recruitment of senior managers [SEC(2004) 252] and contributes to implementing the Commission Communication of 26 May 2004 entitled “Matching supply and demand for translation” [SEC(2004) 638/6].’
6 Document SEC (2004) 252 of 27 February 2004, entitled ‘Communication from Vice-President Kinnock in agreement with the President. The Recruitment of Senior Managers from the New Member States’, which was placed on the agenda for the 1 648th meeting of the Commission of 3 March 2004, adopts procedural rules for the recruitment of senior managers to the Commission from the 10 Member States which joined the European Union on 1 May 2004. Those rules include the rule contained in the last sentence of the second subparagraph of paragraph 5 of that document, which states:
‘The selection procedures will be run in English, French and German.’
7 Document SEC (2004) 638/6 of 26 May 2004, entitled ‘Matching supply and demand for translation. Communication from Mr Kinnock in agreement with the President’, which was placed on the agenda for the 1 659th meeting of the Commission on 26 May 2004, sets out the foreseeable trends in translation capacity and demand for translation within the Commission following enlargement in 2004, explains the limitations imposed as regards available resources by supply-orientated translation measures already adopted, and draws up an action plan of measures to ensure the limitation and management of demand for translations during a transition phase that will last until end 2006. As a result of those measures, as described in paragraph 4 of the document under the heading ‘Action Plan’, during the transition phase certain Commission documents will be translated only into particular official languages, and other documents described as ‘non‑core documents’ may not be translated at all (see last indent of paragraph 4.2 of the document). The document makes no specific mention either of vacancy notices or of any other documents relating to staff selection procedures.
8 On 9 February 2005, the Commission published, in English, French and German only, vacancy notice COM/2005/335 (OJ 2005 C 34 A, p. 3, ‘the vacancy notice’) for the grade grade A*15/A*16 post of Director-General of the European Anti-Fraud Office (OLAF). Under the heading ‘Job requirements’, the vacancy notice stipulated inter alia that ‘[a]pplicants must … have a thorough knowledge of one of the official languages of the European Union and an adequate knowledge of another of these official languages’. Under the heading ‘Application procedure’ the vacancy notice states inter alia:
‘[y]ou will be required to attach a curriculum vitae … to your application and to enter, online, a letter of motivation … Both the CV and letter must be written in either English, French or German.’
9 Also, between 15 and 23 February 2005, the Commission published in the main daily papers in all Member States, including the Italian dailies La Repubblica of 17 February 2005, and Corriere della Sera of 18 February 2005, and in some international newspapers, short advertisements, in the language of each of the publications concerned, informing interested persons of the publication of the vacancy notice and referring readers to that notice for further details.
Procedure and forms of order sought
10 By application lodged at the Court Registry on 3 May 2005, the Italian Republic brought this action.
11 By documents lodged at the Court Registry on 28 July and 3 August 2005, respectively, the Kingdom of Spain and the Republic of Latvia sought leave to intervene in support of the forms of order sought by the Italian Republic. By order of 29 September 2005, the President of the Fifth Chamber of the Court of First Instance granted them leave to intervene. The Kingdom of Spain and the Republic of Latvia lodged their statements in intervention on 17 November 2005.
12 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for by Article 64 of the Rules of Procedure of the Court of First Instance, requested the Italian Republic to answer a question in writing. The Italian Republic complied with that request.
13 The parties presented oral argument and answered the questions put by the Court at the hearing on 3 July 2008.
14 At the hearing the Commission produced a copy of the minutes of its 1 678th meeting of 10 November 2004, containing, in paragraph 8.1, the Decision, worded as follows:
‘[T]he Commission hereby decides that external publications of the vacancy notices for senior management posts in the Official Journal shall henceforth be in English, French and German, as recommended in PERS (2004) 203. This decision shall take effect immediately and apply only until 31 December 2006.’
15 The Commission also produced at the hearing a copy of Commission document PERS (2004) 203 of 5 November 2004, referred to in the abovementioned minutes. Paragraph 2 of that document contains the Commission’s proposal, worded as follows:
‘[I]n the light of:
– the Commission Communication of 26 May 2004 entitled “Matching supply and demand for translation” (SEC (2004) 638/6), which puts in place measures to improve the focus of translation capacity and reduce the overall volume of demand during a transitional period lasting until 1 January 2007;
– the difficulty referred to by the [Directorate-General for Translation] in arranging for translations into the languages of the new countries of the Union within the deadlines requested by operational departments;
– the current overload of work in the [Directorate-General for Translation], which entails time-lags that are incompatible with the desire of departments to fill their posts as soon as possible;
– the fact that the Commission Decision of 3 March 2004 [SEC (2004) 252] concerning “The recruitment of Senior Managers from the New Member States” states that selection procedures must be run in English, French and German;
it is proposed that the Commission in agreement with the President should decide that external publications of the vacancy notices for senior management posts in the OJ will henceforth be in English, French and German.’
16 The Court decided to place those documents in the case file and invited the parties to submit any relevant observations they might have relating to them. All the parties stated that, although the wording used in the two documents produced by the Commission differs slightly from that used in the document which the Italian Republic annexed to its application, the tenor of the Decision is exactly the same in the documents produced by the Commission and in the document annexed to the application. Formal note was taken of those statements in the minutes of the hearing. Apart from this, none of the parties put forward any other observations concerning the documents produced by the Commission.
17 The Italian Republic, supported by the Kingdom of Spain and the Republic of Latvia claim that the Court should annul the Decision and the vacancy notice.
18 The Commission contends that the Court should:
– dismiss the action as inadmissible or, in the alternative, as being without foundation;
– order the Italian Republic to pay the costs.
Law
Admissibility
19 The Commission expresses doubts as to the admissibility of the action but does not raise an objection of inadmissibility by a separate document pursuant to Article 114(1) of the Rules of Procedure of the Court. Those doubts concern, first, the right of Member States to bring proceedings under Article 230 EC against a vacancy notice for the recruitment of staff to the institutions, secondly, the classification of the Decision as an act open to challenge for the purposes of the first paragraph of Article 230 EC, thirdly, the issue of whether the vacancy notice is an act open to challenge, on the ground that it is an act that implements or applies the Decision, were the Decision itself to be regarded as an act against which proceedings may be brought and, fourthly, compliance with the time-limits, for bringing proceedings laid down in the fifth paragraph of Article 230 EC, in so far as annulment of the Decision is sought.
The right of Member States to bring proceedings under Article 230 EC against acts of the institutions concerning their relations with their officials and other servants
– Arguments of the parties
20 The Commission points out that in Case C‑160/03 Spain v Eurojust [2005] ECR I‑2077, paragraphs 37 to 44, the Court declared inadmissible an action brought by a Member State against certain calls for applications in connection with the recruitment of temporary staff, issued by Eurojust, on the grounds that the contested calls for applications were not included in the list of acts of which the Court may review the legality, that the candidates for the various posts named in those calls for applications had access to the Community judicature under the conditions laid down in Article 91 of the Staff Regulations and that in the event of such proceedings Member States would be entitled to intervene and could, where appropriate, appeal against the judgment of the Court of First Instance. The Commission submits that despite the specific nature of that case the present action should, by analogy, be held to be inadmissible in so far as the form of order relating to the vacancy notice is concerned.
21 The Italian Republic considers that the legal interest justifying a Member State intervening in a case in which a candidate challenges the legality of a vacancy notice is no different from the legal interest justifying a direct action by that State. It adds that Member States may challenge, by means of an action for annulment, any Commission decision producing legal effects, in the form of legislation or an individual decision, and when doing so, rely on infringement of any provision of the EC Treaty. Therefore, in the present case the Italian Republic is entitled to challenge both the Decision and the vacancy notice, and to rely on infringement of Articles 12 EC and 290 EC in support of its application.
22 The Kingdom of Spain supports the arguments put forward by the Italian Republic and adds that Spain v Eurojust, cited in paragraph 20 above, is not relevant. According to the Kingdom of Spain, in that case the Court held that an action for annulment of an act adopted by Eurojust could not be brought under Article 230 EC since Eurojust is a body coming under the third pillar of the European Union. In the present case the action does concern Commission acts covered by Article 230 EC.
– Findings of the Court
23 Article 230 EC allows Member States to challenge any Commission decision producing legal effects by means of an action for annulment, and does not exclude those concerning its relations with its officials and other servants.
24 The Court has, it is true, held that Article 236 EC, which confers on the Community judicature jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment, must be construed as applying exclusively to persons who have the status of official or servant other than local staff and to persons claiming that status. Such persons must therefore bring their actions for annulment of an act adversely affecting them not on the basis of Article 230 EC, but on that of Article 91 of the Staff Regulations (see order of the Court of First Instance of 2 May 2001 in Case T‑208/00 Barleycorn Mongolue and Boixader Rivas v European Parliament and Council ECR-SC [2001] I‑A‑103 and II‑479, paragraphs 26 to 28, and case-law cited therein).
25 Article 236 EC, however, only covers disputes ‘between the Community and its servants’. An action brought by a Member State under Article 230 EC does not give rise to a dispute of that nature.
26 The Court has also held that although the remedy provided for in Article 91 of the Staff Regulations is available only to Community officials and other servants and not to a staff association, such an association which fulfils these conditions is entitled, by virtue of the fourth paragraph of Article 230 EC, to institute proceedings for annulment against a decision addressed to it within the meaning of that provision (Case 175/73 Union Syndicale and Others v Council [1974] ECR 917, paragraphs 17 to 20).
27 It follows that if the conditions for Article 230 EC to apply are met it is possible for applicants not covered by Article 91 of the Staff Regulations, that is to say applicants who are neither Community officials or other servants nor candidates for a post in the European Civil Service, to bring an action under that provision for annulment of Commission acts concerning the European Civil Service.
28 In the present case, without prejudice to the considerations set out below regarding the status of the Decision and the vacancy notice as acts that are open to challenge, the right of a Member State to bring an action for annulment under Article 230 EC against a decision of the Commission producing legal effects cannot be called in question because those acts concern issues relating to the European Civil Service.
29 Spain v Eurojust, cited in paragraph 20 above and relied upon by the Commission, does not lead to a different conclusion. In that case the Court dismissed as inadmissible an action brought by the Kingdom of Spain under Article 230 EC, on the ground that the acts contested in that action were not included in the list of acts the legality of which the Court may review under that article and, moreover, Article 41 EU does not provide that Article 230 EC is to apply to the provisions on police and judicial cooperation in criminal matters in Title VI of the EU Treaty, under which Eurojust falls, the jurisdiction of the Court in such matters being defined in Article 35 EU, to which Article 46(b) EU refers (Spain v Eurojust, cited in paragraph 20 above, paragraphs 36 to 40).
30 The paragraphs of that judgment to which the Commission refers concern the Kingdom of Spain’s argument regarding the right to effective judicial protection in a community based on the rule of law. It was in response to that argument that the Court noted that the acts contested in that case were not exempt from judicial review, since the main parties concerned, namely the candidates for the various posts in the contested calls for applications, had access to the Community judicature under the conditions laid down in Article 91 of the Staff Regulations and, in the event of such an action, Member States would be entitled to intervene in the proceedings and could, where appropriate, appeal against the judgment of the Court of First Instance (Spain v Eurojust, cited in paragraph 20 above, paragraphs 41 to 43).
31 The conclusion cannot be drawn from these considerations alone that as regards acts adopted by the Commission, which unlike acts adopted by Eurojust are covered by Article 230 EC, the Member States are not entitled to bring an action for annulment under that article but must restrict themselves to intervening in proceedings between the Commission and its officials and other servants.
32 In the light of the above considerations, there can be no doubt as to the applicability of Article 230 EC in the present case.
Status of the Decision and the vacancy notice as acts that are open to challenge, for the purposes of the first paragraph of Article 230 EC
– Arguments of the parties
33 The Commission has serious doubts as to whether the Decision is an act that is open to challenge for the purposes of Article 230 EC. The Decision is not intended essentially to produce binding legal effects vis-à-vis third parties that are likely to affect their interests directly by significantly altering their legal position. On the contrary, it is merely a declaration of the Commission’s intention to follow a particular line of conduct in the event of specific future events, namely the publication of vacancy notices. According to case-law, such acts, which merely provide information, are not per se likely to produce legal effects vis-à-vis third parties, nor are they intended to do so. The interests of third parties cannot be specifically harmed except by measures actually adopted according to the guideline set out in the Decision. The applicant’s statement that publication of the vacancy notice puts into concrete form the harm done by the Decision to the applicants’ legally protected interests confirms this view.
34 The Commission adds that if the Decision was to be regarded as a measure intended to produce binding legal effects and, hence, open to an independent action for annulment under Article 230 EC, the individual vacancy notices published subsequently under the Decision would be purely implementing measures, lacking any autonomy vis-à-vis the Decision itself, and therefore not open to challenge. The Italian Republic in its application describes the vacancy notice as an act implementing or applying the Decision. The Commission therefore submits that if that is so the action should be dismissed as inadmissible in so far as it relates to the vacancy notice.
35 The Italian Republic accepts that it is not certain that the Decision has binding legal effects vis-à-vis third parties, since it could be argued that it is not directed to the outside world but refers solely to the Commission itself and that only the publication of a specific vacancy notice could affect the interests of persons outside the Commission.
36 None the less, the Italian Republic considers that there are arguments to support the view that the Decision is an act that is open to challenge. On one hand, the Decision lays down the language rules applying in future to all vacancy notices for senior management posts and already affects the interests of persons outside the Commission, in particular the interests of those Member States whose official languages have not been selected for use. The Member States concerned could therefore refer the matter to the Court of First Instance immediately without waiting for a vacancy notice to be published only in the three languages specified in the Decision. On the other hand, the fact that the Decision does not have the appearance of an act preparatory to a final decision, but gives the appearance of being a final decision, supports the view that the Decision is an act that is open to challenge.
37 The Italian Republic adds that if it had not become aware of the Decision by chance it could only have challenged vacancy notices that were published and such a challenge would have been sufficient, in that case, to restore legality. However, the interest of a Member State, which is different from that of an individual candidate for a post in the Community administration, is best protected by annulment of the Decision itself, since annulment would avoid the need for the Member State concerned to challenge individually all vacancy notices not published in its official language.
38 The Kingdom of Spain supports the Italian Republic’s arguments, adding that the Decision and the vacancy notice cannot be separated but form a legal entity. The Decision has exceptionally significant and serious legal effects, since it undermines in particular the principle of respect for linguistic plurality, which is one of the basic principles on which the European Union is founded, and the principles relating to the powers of the institutions, non‑discrimination on grounds of language and national identity. The vacancy notice is simply an act that implements and applies the Decision, so that if the Court were to annul the Decision the vacancy notice would be annulled as a consequence.
– Findings of the Court
39 The Court has consistently held that an action for annulment, for the purposes of Article 230 EC, must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (Case 22/70 Commission v Council [1971] ECR 263, paragraph 42; Case C‑325/91 France v Commission [1993] ECR I‑3283, paragraph 9; Case C‑57/95 France v Commission [1997] ECR I‑1627, paragraph 7; and Case C‑301/03 Italy v Commission [2005] ECR I‑10217, paragraph 19).
40 To determine whether an act or decision produces such effects, it is necessary to look to its substance (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; see Joined Cases T‑125/97 and T‑127/97 Coca-Cola v Commission [2000] ECR II‑1733, paragraph 78, and case-law cited therein).
41 A measure adopted by an institution which reflects only its intention, or that of one of its departments, to follow a particular line of conduct in a particular field is not an act open to challenge, for the purposes of Article 230 EC (Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraph 13, and Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 28). Such internal guidelines indicating the general lines along which, pursuant to the relevant provisions, the institution envisages subsequently adopting individual decisions whose legality may be challenged in accordance with the procedure laid down by Article 230 EC cannot be regarded as intended to produce legal effects (Case C‑443/97 Spain v Commission [2000] ECR I‑2415, paragraphs 33 and 34).
42 It should also be noted that Article 29(2) of the Staff Regulations allows each institution to adopt a recruitment procedure other than the competition procedure for the recruitment of senior officials.
43 According to case-law, an institution must exercise its discretion in assessing the merits of the various candidates for a particular post in full compliance with all the relevant rules, that is to say, not only with the vacancy notice but also with any procedural rules the institution may have (Case T‑73/01 Pappas v Committee of the Regions [2003] ECR‑SC I‑A‑207 and II‑1011, paragraph 53). Those rules form part of the legal framework which that institution must strictly observe in the exercise of its broad discretion (Case T‑88/04 Tzirani v Commission [2006] ECR‑SC II-A-2-703, paragraph 78). The institution concerned cannot refrain from applying internal rules governing recruitment which it has laid down for itself without formally amending those rules (Case T‑113/05 Angelidis v European Parliament [2007] ECR II‑0000, paragraph 75).
44 It follows that procedural rules which an institution adopts, under Article 29(2) of the Staff Regulations, for recruitment of its senior management staff are binding on that institution and thereby produce legal effects within the meaning of the case-law relating to the application of Article 230 EC.
45 It is true that such rules may, under that provision of the Staff Regulations, be adopted on a case-by-case basis for each post that becomes vacant within an institution to which it applies. If an institution decides to adopt that approach there is nothing to prevent it from adopting internal guidelines indicating the general lines under which it will lay down, whenever necessary, the procedural rules to be followed for recruitment to a post to which Article 29(2) of the Staff Regulations applies. According to the case-law cited in paragraph 41 above, it must be concluded that in such cases those internal guidelines do not in themselves produce binding legal effects and cannot therefore be the subject of an action for annulment. Such an action in that situation could only be brought against the vacancy notice or any other act which lays down definitively the procedural rules to be followed when filling a specific post.
46 However, neither Article 29(2) of the Staff Regulations nor any other provision preclude an institution adopting, prior to carrying out a specific procedure for filling a senior management post, general implementing rules making definitive provision for at least some aspects of the procedure to be followed when recruiting senior management staff within that institution. Such rules produce binding legal effects inasmuch as the institution concerned cannot, unless those rules are amended or repealed, depart from them during the process of recruitment to a specific post in that category. In such a case, a privileged applicant such as a Member State can immediately challenge the legality of those rules by an action for annulment under Article 230 EC without having to wait for them to be applied in a particular case.
47 In the present case it is therefore necessary to determine, first of all, whether the Decision merely indicates the Commission’s intention to follow a certain guideline or line of conduct during procedures for the recruitment of senior management staff or whether, instead, the Decision makes provision, in what is henceforth a definitive form, for one aspect of the procedure to be followed in future when filling all senior management posts falling within its scope.
48 In the light of the content of the Decision, both in the version contained in the document the Italian Republic annexed to its application and in the versions produced by the Commission at the hearing, it is the second of those options that should be taken to apply. Drafted in clear and unequivocal terms, the Decision does not merely contain guidelines, it actually makes provision, definitively and in a binding form, for one aspect of recruitment procedures, when filling senior management posts within the Commission, concerning the languages in which the relevant vacancy notices are to be published, up until at least 1 January 2007, the date on which the transitional period for the application of the Decision was due to end. That is borne out in particular by the fact that, on the one hand, the contested act uses the words ‘the Commission decided’, ‘the Commission hereby decides’, and also the word ‘decision’, and, on the other hand, the vacancy notice was published only in English, French and German, that is to say, in full compliance with the relevant publication rules laid down in the Decision (conversely, see Italy v Commission, cited in paragraph 39 above, paragraphs 21 to 24, and United Kingdom v Commission, cited in paragraph 41 above, paragraph 14).
49 The Decision is thus binding on the Commission, which cannot depart from it without formally amending it. Moreover, as for its content, it must be regarded as producing binding legal effects and therefore as open to challenge in an action for annulment under Article 230 EC, brought by a privileged applicant such as a Member State.
50 Secondly, it is appropriate to consider the Commission’s argument that, in the event that the Decision were to be considered to be an act producing binding legal effects, the action should be declared inadmissible in so far as it is directed against the vacancy notice, since in such circumstances the latter is purely a measure implementing the Decision.
51 According to case-law, the category of acts not producing binding legal effects, that are capable of affecting the interests of the individual concerned includes purely implementing measures, which do not therefore constitute acts open to challenge for the purposes of Article 230 EC (Case C‑46/03 United Kingdom v Commission [2005] ECR I‑10167 paragraph 25; Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 55; and Case C‑516/06 P Commission v Ferriere Nord [2007] I‑0000, paragraph 29).
52 Purely implementing measures are, in particular, measures which, without giving rise to any rights or obligations for third parties, are designed merely to put into practical effect an earlier measure, or measures adopted in order to implement earlier decisions which produce only internal legal effects within the administration and do not affect the interests of third parties (Case 190/84 Les Verts v European Parliament [1988] ECR 1017, paragraph 8, and United Kingdom v Commission, cited in paragraph 51 above, paragraphs 1 and 25; see also, to that effect, Case 20/58 Phoenix-Rheinrohr v High Authority [1959] ECR 75, at p. 82).
53 The following in particular have been found to be purely implementing measures not open to challenge under Article 230 EC: the act of decommitting from the budget a sum which the Commission had previously decided to decommit (United Kingdom v Commission, cited in paragraph 51 above, paragraphs 1 and 25); measures entering into commitments of expenditure and validating, authorising and implementing the payment of expenditure, adopted following decisions concerning the allocation and use of appropriations (Les Verts v EuropeanParliament, cited in paragraph 52 above, paragraph 8); and implementation, through enforcement of a bank guarantee, of a previous Commission decision which imposed a fine on a company as the result of its involvement in a series of infringements covered by Article 81(1) EC (Commission v Ferriere Nord, cited in paragraph 51 above, paragraphs 28 and 29).
54 In the present case, contrary to what the Commission maintains, there are no grounds for accepting that the vacancy notice is an act purely implementing the Decision, within the meaning of the case-law referred to in paragraphs 51 to 53 above.
55 As the Court has consistently held, by defining the conditions relating to eligibility for the post, vacancy notices determine which persons’ applications are likely to be accepted, and are therefore acts which adversely affect the potential candidates whose applications are excluded under those conditions (Case 79/74 Küster v European Parliament [1975] 725, paragraphs 5 to 8; Case 25/77 De Roubaix v Commission [1978] ECR 1081, paragraphs 7 to 9; and Case T‑60/92 Noonan v Commission [1993] II‑911, paragraph 21).
56 Furthermore, the fact that a vacancy notice is an act that can have an adverse effect and therefore be open to challenge for the purposes of Article 230 EC cannot be disputed on the grounds that it complies, in one particular aspect, with conditions already laid down in a legal rule or in a previous decision of an institution having general application, or that it repeats some of those conditions – which form the legal basis for that vacancy notice – since it is in fact the vacancy notice which specifies the overall legal position of all potential applicants and enables them to ascertain, in a certain and unequivocal manner, how and to what extent their particular interests are affected.
57 It follows that the Commission’s argument that, inasmuch as it was published only in the three languages stipulated in the Decision, the vacancy notice should be regarded as a purely implementing measure not open to challenge should be dismissed.
Time-limit for bringing an action against the Decision
– Arguments of the parties
58 The Commission maintains that, since the Decision was neither notified nor published, the time-limit for bringing an action for its annulment did not, under the fifth paragraph of Article 230 EC, begin to run until the Italian Republic became fully aware of the content of the Decision and of the reasons on which it was based.
59 The Italian Republic merely stated, in paragraph 11 of the application, that it became aware of the Decision ‘when the vacancy notice was published’, without, however, giving either the exact date or whether it complied with the requirement to request, within a reasonable period, the full text of the Decision after learning of its existence, in accordance with established case-law regarding time-limits for actions against acts that have not been published or notified. In its reply, the Italian Republic also merely stated that it did not become fully aware of the content of the Decision ‘until the end of March’ 2005, without giving further details.
60 The Commission accepts that the date on which the Italian Republic became aware of the Decision and the date of publication of the vacancy notice did not coincide, in view of the need also to take into account the time required to examine the vacancy notice and carry out research to check the existence of a previous administrative decision and become fully aware of its content. However, taking into account, first, the Italian Republic’s conduct mentioned in paragraph 59 above, secondly, the fact that the Decision was not communicated under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and, lastly, the lack of explanation as to how the text of the Decision could be obtained by other means, it is pointless to object, as the Italian Republic does, that the Commission has not provided any evidence that the Italian authorities were fully aware of the Decision before or at the time of publication of the vacancy notice, since the burden of proof in the circumstances of the present case lies with the applicant.
61 The conduct of the Italian Republic does not comply with the requirements laid down in case-law and raises reasonable doubt as regards compliance with the time-limit for bringing an action in so far as it is directed against the Decision. In such circumstances, the Commission considers that the date on which the Italian Republic became aware of the precise tenor of the Decision must have been shortly after the date on which the vacancy notice was published and so the time-limit for bringing the action against the Decision, which was not lodged until 3 May 2005, at the same time as the vacancy notice was challenged, should probably be regarded as having already expired, without any action having being brought, by that date.
62 The Italian Republic notes in its application that it became aware of the Decision only ‘when the vacancy notice was published’. In its reply, the Italian Republic states that, since the vacancy notice did not refer to the Decision, the date from which the period prescribed for bringing an action against it began to run could not be the same as that on which the vacancy notice was published. It was necessary to take into account the time needed to examine the vacancy notice and conduct research to confirm the existence of the Decision and to become aware of its content. That research was, moreover, made more complicated as a result of the transitory nature of the preliminary internal organisational measure laid down in the Decision. The delays due to conducting that research did not allow the Italian Republic to become fully aware of the Decision until the end of March 2005. The Commission has not shown that the Italian Republic became fully aware of the Decision before the end of March 2005 or before the publication of the vacancy notice.
63 Moreover, since it is reasonable in the present case to establish the starting point for the time needed to acquaint itself with the Decision as the date of publication of the vacancy notice, and in view of the extension of the time-limit for bringing an action against the Decision on account of distance by a single period of 10 days, under Article 102(2) of the Rules of Procedure, the Italian Republic’s action cannot be regarded as being brought out of time. Consequently, it considers that its action was brought within the time-limit.
64 The Kingdom of Spain supports the Italian Republic’s arguments and adds that the date on which the vacancy notice was published cannot be considered to be the point from which time begins to run for the Italian Republic to challenge the Decision, since the vacancy notice was not published in the Italian language version of the Official Journal and the Italian authorities cannot be required to read any other version of the Official Journal. So far as the short advertisements inserted, in particular, in two Italian dailies (see paragraph 9 above) are concerned, they cannot be regarded as being the same as publication in the Official Journal and so they cannot be taken into account for purposes of calculating the time-limit for bringing an action.
– Findings of the Court
65 The fifth paragraph of Article 230 EC provides that annulment proceedings must be instituted within two months. Time begins to run from the publication of the measure, its notification to the plaintiff or, in the absence thereof, the date on which it came to the knowledge of the latter, as the case may be.
66 It is clear simply from the wording of that provision that the criterion of the date on which a measure came to the knowledge of the plaintiff, as the starting point of the period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure (Case C‑122/95 Germany v Council [1998] ECR I‑973, paragraph 35; see also Case T‑190/00 Regione Siciliana v Commission [2003] ECR II‑5015, paragraph 30, and case-law cited therein).
67 According to settled case-law, it is for the party pleading that the action is out of time to provide evidence of the date on which the event causing time to begin to run occurred (see order of the Court of First Instance of 13 April 2000 in Case T‑263/97GAL Penisola Sorrentina v Commission [2000] ECR II‑2041, paragraph 47, and case-law cited therein).
68 It is also apparent from the case-law of the Court that, failing publication or notification, it is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period but, subject thereto, the period for bringing an action can begin to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right to bring an action (Case 236/86 Dillinger Hüttenwerke v Commission [1988] ECR 3761, paragraph 14; Case C‑309/95 Commission v Council [1998] ECR I‑655, paragraph 18; Case T‑17/02 Olsen v Commission [2005] ECR II‑2031, paragraph 73; and order of the Court of First Instance of 21 November 2005 in Case T‑426/04 Tramarin v Commission [2005] ECR II‑4765, paragraph 48).
69 It is also settled case-law that the time-limit prescribed for bringing actions under Article 230 EC is a matter of public policy since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Community Court must ascertain, even of its own motion, whether that time-limit has been observed (Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
70 However, where it is not possible to ascertain with any certainty the date on which the plaintiff first knew exactly what was in the measure that it is contesting and what were the reasons on which it was based, the period prescribed for initiating proceedings must be considered to have begun to run, at the latest, from the date on which it can be established that the plaintiff had such knowledge (Case C‑480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 49).
71 In the present case, it is not disputed that the Decision was neither published nor notified to the Italian Republic. Nor is there any doubt that the Italian Republic was fully aware of the content of the Decision in question and of the reasons on which it was based prior to the action being brought. Although the version of the Decision which the Italian Republic annexed to its application is worded slightly differently from the documents produced by the Commission at the hearing, it is not disputed that the tenor of both versions of the Decision before the Court is exactly the same.
72 The question is therefore on what precise date did the Italian Republic obtain the copy of the Decision annexed to its application, since it is from that date that the period prescribed for bringing an action against the Decision began to run for the Italian Republic. It should also be noted that a simple calculation shows that in order for the action against the Decision not to be out of time the Italian Republic must have become aware of the Decision no earlier than 23 February 2005.
73 Since the Italian Republic had not given any clear indication in its pleadings of the date on which it obtained the copy of the Decision annexed to its application, the Court requested it, by way of a measure of organisation of procedure, to indicate, with supporting evidence, the precise date, from what source and by what means it obtained the copy of the Decision which appears in the annex to its application.
74 In its initial reply, lodged at the Registry on 12 June 2008, the Italian Republic referred to a letter which its Permanent Representative to the European Union had sent to the Secretary-General of the Commission on 10 March 2005 protesting against the failure to publish the vacancy notice in Italian as well, and the replies to that letter from the Vice-President and the Secretary-General of the Commission, both dated 6 April 2005. The Italian Republic produced copies of those three letters and stated that it was following those letters that it became aware of Commission internal document SEC (2004) 638/6 of 26 May 2004, a document which differed from the Decision although it was mentioned in it.
75 In a further reply, lodged at the Registry on 23 June 2008, the Italian Republic added that it had obtained the copy of the Decision annexed to its application ‘by chance’ through an association for the promotion of the Italian language, but did not specify the date on which the association concerned had passed the copy to it.
76 Although the imprecise nature of the replies from the Italian Republic are cause for regret, the Court finds that not only has the Commission not provided any proof that the Italian Republic was aware of the Decision before 23 February 2005, but there is some evidence on the file to suggest that on that date the Italian Republic was not yet aware of the existence and the content of the Decision.
77 Thus, first, in its letter of 10 March 2005, the Permanent Representative of the Italian Republic to the European Union protested strongly against the failure to publish the vacancy notice in Italian but made no mention of the Decision. It is logical to presume that that protest would also have referred to the Decision if the Italian Republic was already aware of its existence and content at the date of the abovementioned letter.
78 Second, the letter from the Secretary-General of 6 April 2005, sent in reply to the letter of 10 March 2005, merely mentioned a ‘practice’ of publishing vacancy notices for senior management posts in only three languages, which had been in existence ‘since last November’, without disclosing that that practice was based on the Decision.
79 Nor did the letter from the Vice-President of the Commission dated 6 April 2005 disclose the existence of the Decision, it merely stated, rather ambiguously, that the practice of publishing such notices in only three languages came from Commission document SEC (2004) 638/6, dating back to May 2004.
80 Lastly, the Italian Republic’s statement in its application that it became aware of the Decision ‘when the vacancy notice was published’ cannot be taken to mean that the Italian Republic became aware of the existence and content of the Decision on the day of that publication (9 February 2005), since, as the Italian Republic rightly states, the vacancy notice makes no reference to the Decision.
81 In those circumstances, the abovementioned statement must be interpreted as meaning that it was following publication of the vacancy notice that the Italian Republic carried out the research which led it to obtain the copy of the Decision which appeared in the annex to the application, at a later date which cannot be established for certain. However, there is no evidence on the file to show that that date was prior to 23 February 2005.
82 In view of all the foregoing, there are grounds for concluding that the action was brought within the time-limits, both in so far as it is directed against the Decision and in so far as it is directed against the vacancy notice, since it was indisputably brought within the time-limit so far as the vacancy notice is concerned.
Substance
83 The Italian Republic relies on a single plea, alleging infringement of Article 12 EC, Article 22 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 at Nice (OJ 2000 C 364, p. 1), Articles 1, 3, 4 and 5 of Regulation No 1, Article 1d(1) and Article 27 of the Staff Regulations, Article 18 of the Rules of Procedure of the Commission, and the principles of non‑discrimination on grounds of nationality and respect for linguistic diversity.
Arguments of the parties
84 The Italian Republic maintains that by providing in the Decision that vacancy notices for senior management posts would not be drafted in Italian and by failing to publish the vacancy notice in Italian, the Commission infringed Articles 1, 3, 4 and 5 of Regulation No 1 and Article 12 EC. The Commission also disregarded Article 22 of the Charter of Fundamental Rights of the European Union, which states that the Union will respect cultural, religious and linguistic diversity. According to case-law, in the context of a Community based on the principle of free movement of persons, the protection of the linguistic rights and privileges of individuals is of particular importance, so that any indirect discrimination on grounds of linguistic knowledge should be prohibited (Case 137/84 Mutsch [1985] 2681, paragraph 11; Case C‑379/87 Groener [1989] ECR 3967, paragraph 13; and Case C‑274/96 Bickel and Franz [1998] ECR I‑7637, paragraphs 19 and 23).
85 The Italian Republic adds that the principle of protection of the Community’s linguistic diversity constitutes a fundamental requirement for all its institutions and bodies. The rules governing the use of languages within the institutions of the European Union cannot be applied in isolation from this principle. Those rules ensure recognition of the linguistic rights of individuals, who have direct access to the Community institutions. They stem from the special nature of the relations which bind the Community to its citizens and should therefore be regarded as being the direct expression of the European Union’s linguistic diversity.
86 Naturally, respect for the principle of protection of linguistic diversity should be reconciled with the needs of institutional and administrative life, which may in practice justify certain restrictions on this principle. However, such restrictions should be limited and justified by overriding requirements of institutional and administrative life and must not undermine the substance of the principle requiring institutions to respect and use all the official languages of the Community.
87 In that regard, the Italian Republic notes three different situations covered by Regulation No 1.
88 First, the principle of respect for linguistic diversity requires greatest protection in the area of communications between the institutions and citizens of the Union. In that case, this principle is linked to a fundamental democratic principle, respect for which requires in particular that subjects of Community law, Member States and European citizens should be afforded easy access to Community legislation and the institutions which produce it. Technical difficulties which an efficient institution can and must overcome cannot stand in the way of linguistic diversity.
89 Second, in the area of administrative procedures it is also essential that the persons concerned, Member States or citizens, should be able to understand the institution or body with which they are in contact. That is why Article 3 of Regulation No 1 requires the language of the person concerned to be used as the language of communication. Admittedly, in this context, the linguistic rights of the persons concerned may be subject to restrictions justified by requirements of the administration (Case C‑361/01 P Kik v OHIM [2003] ECR I‑8283, paragraphs 92 to 94). However, under Article 290 EC, only the Council, and not the Commission, is entitled to treat the official languages differently, making an appropriate and proportionate choice which avoids unjustified discrimination between European citizens.
90 Third, in the context of the internal functioning of the institutions and bodies of the Community, Article 6 of Regulation No 1 authorises an institution to choose and impose on its own staff the use of a particular vehicular language. However, although elementary requirements for the efficiency of the work of the administration may justify the imposition of a limited number of working languages, the internal linguistic arrangements cannot be totally dissociated from the institutions’ external communication arrangements. Consequently, the choice of one or more working languages at internal level is admissible only if it is based on objective, functional considerations and so long as it does not create unjustified differences in treatment between citizens of the Community. Thus, the procedures for recruiting the staff of an institution should ensure the participation of all those who possess the necessary abilities for occupying the posts to be filled.
91 In the present case, publication of vacancy notices for senior management posts in the Commission in only three languages conflicts not only with Regulation No 1 but also with the last paragraph of Article 18 of the Rules of Procedure of the Commission, and Articles 1d(1) and 27 of the Staff Regulations.
92 The Commission justified that measure by reference to the difficulties in translating such notices into the nine official languages of the Member States which joined the Community on 1 May 2004. Such difficulties, of a purely administrative and organisational nature, cannot justify the absence of translations into the official languages of the other Member States, especially since the capacity for translation into their languages had not caused any problems in the past.
93 Failure to translate the vacancy notices in question into the languages of the new Member States could have been justified, on a provisional and transitional basis, if the potential candidates from those States had been in a position duly to acquaint themselves with those notices by other means. In that regard, the Italian Republic considers that those candidates should be regarded as being qualified persons with substantive knowledge-based resources which would enable them to be adequately informed. Therefore, publication in the national press of the new Member States of an advertisement concerning the publication of a vacancy notice not translated into the languages of those States, or a communication to that effect sent by the Commission to the national authorities of those States, would have compensated for the temporary breach of the European Union’s language rules.
94 However, the Commission’s choice to discontinue translating the vacancy notices concerned into all but three of the official languages is an irrational measure since, in order to avoid discrimination against the languages of the new Member States, the Commission introduced another form of discrimination, to the detriment of most of the official languages of the old Member States. Thus, the initiative taken to remedy a case of discrimination by increasing the number of persons and languages which are discriminated against has the effect of aggravating the problem rather than resolving it.
95 The same irrational choice also infringed the principle of proportionality, since it afforded an advantage and a privileged ranking to a limited group of languages, namely, English, French and German. Although Article 6 of Regulation No 1 allows the institutions to determine the procedure for applying the Community’s language rules in their rules of procedure, there is no written rule stating that the three languages mentioned above are the Commission’s internal working languages. Moreover, the vacancy notices referred to in Article 29(2) of the Staff Regulations are not covered by the internal language rules of an institution. Consequently, if the Commission were to use a limited number of languages for its internal procedures this would not have any repercussions either on the Community’s language rules, as laid down by the Council pursuant to Article 290 EC, or on the procedure for recruitment of staff to the institutions.
96 In its reply, the Italian Republic adds that the situation created following enlargement of the Union on 1 May 2004 cannot justify a reduction in the level of legal treatment afforded to the languages of the Member States on the basis of a measure of internal organisation. Enlargement could have justified at most different treatment of the languages of the new Member States, on a purely transitional basis and by a Council decision, adopted unanimously in accordance with Article 290 EC. In the absence of such a prior decision by the Council, the Commission’s contested measure is vitiated by a complete lack of competence and should therefore be declared unlawful. The mere fact that the Decision was adopted by the College of Commissioners and not by a Directorate-General of the Commission does not make it lawful since, in the present case, it is not the competence of one or other Community body that is at issue but the competence conferred on the Commission itself.
97 The Kingdom of Spain argues, first of all, that the Commission lacks competence, since the Council has not adopted any measure that would permit the Commission to adopt the Decision and implement it. The serious consequences resulting from the Decision cannot be accepted without a prior decision by the Council, which would provide the legal basis for the measures adopted by the Commission.
98 Secondly, the Kingdom of Spain maintains that the statement of reasons given in the Decision is inadequate. Like the Italian Republic, the Kingdom of Spain considers that the problems of capacity for translation into the languages of the new Member States do not justify discontinuing translation of vacancy notices into all but three languages. It adds that if the vacancy notices had to be translated, albeit partially, into all the languages for the purposes of publishing advertisements in the press, there was nothing to prevent those notices being published in all languages in the Official Journal as well. Lastly, the Kingdom of Spain notes that in this case the vacancy notice was addressed to candidates from all Member States, not only those from the new Member States.
99 Thirdly, the Kingdom of Spain supports the Italian Republic’s arguments that publication of the vacancy notices concerned by the Decision in only three languages affords those languages a privileged ranking, in breach of the principles of non-discrimination and proportionality. In the Kingdom of Spain’s view that is borne out by the fact that the Commission has put forward no justification for the choice of the three languages in question.
100 Lastly, the Kingdom of Spain submits that, contrary to what the Commission maintains, no parallels can be established between the present case and Spain v Eurojust, cited in paragraph 20 above. The Eurojust calls for applications at issue in the latter case were published in all languages. All interested persons were therefore on an equal footing, irrespective of their nationality. However, in the present case, a Spaniard who wished to apply for the post of Director-General of OLAF would have needed to read, on a particular day, one particular Spanish newspaper, since no-one can be required to look at editions of the Official Journal in languages other than their own. Thus, in the Kingdom of Spain’s view, publication of the vacancy notice only in the English, French and German editions of the Official Journal is, in itself, sufficient reason for it to be annulled. Moreover, Eurojust put forward no justification for the language differences in its calls for applications. In the present case, however, the justification given for the Commission’s decision to exclude certain languages was the lack of available capacity to translate vacancy notices into the languages of the new Member States. Nevertheless, that justification does not make the contested measure appropriate or proportionate.
101 The Republic of Latvia supports the arguments put forward by the Italian Republic and maintains that the Decision infringes the principles of legal certainty, non‑discrimination and proportionality.
102 First, the Republic of Latvia maintains that, in the light of Articles 4 and 5 of Regulation No 1, persons wishing to apply for senior management posts at the Commission may legitimately expect that the relevant vacancy notices will be published in the Official Journal in all the official languages. The Decision itself was not published in the Official Journal in order to inform candidates whose mother tongue was not English, French or German that henceforth they could consult vacancy notices for senior management posts only in the editions of the Official Journal published in those three languages. That situation is a breach of the principle of legal certainty.
103 Secondly, the Republic of Latvia submits that the publication of Commission vacancy notices for senior management posts only in English, French and German confers an unwarranted advantage on citizens of certain Member States in breach of the principle of non‑discrimination. In that regard, the Republic of Latvia maintains that, although neither basic Community law nor case-law refers directly to a principle of equality of languages, such a principle, as a particular aspect of the prohibition of discrimination on grounds of nationality, stems from Article 12 EC, since knowledge of a language is directly linked to nationality. Moreover, the existence of the principle of equality of languages was not disregarded in Kik v OHIM, cited in paragraph 89 above, and derives also from Article 1 of Regulation No 1 and from Article 314 EC.
104 Thirdly, the Republic of Latvia submits that financial considerations or possible issues of translation capacity cannot justify discrimination between languages. Moreover, the Commission’s arguments about costs are dubious, since the same amount of human and financial resources were necessary for the translation and publication of the advertisements in the national press of the Member States. In addition, the Commission could have avoided overloading its translation services by choosing not to translate into all languages other less important texts such as individual decisions which concern only one person. Finally, the Commission, in the light of experience acquired during previous enlargements of the Union, should have prepared itself in time in order to provide and build up the resources needed in order to deal with any issues of translation capacity following the 2004 enlargement.
105 Lastly, the Republic of Latvia maintains that the principle of proportionality has also been infringed in this case. The Commission did not do everything possible to minimise the difficulties resulting from failure to publish the vacancy notices in question in all the official languages. In that regard, neither the choice of the three languages most used in the Union, for purposes of publishing those notices in the Official Journal, nor the publication, in the other languages, of advertisements in the national press, were sufficient. The national press cannot be regarded as being the same as the Official Journal. It would have been possible, at the very least, at the same time as publication of the advertisements in the newspapers of the Member States, to publish in the other editions of the Official Journal a general description of each post to be filled, with a note that all the information relating to it was to be found in the English, French and German editions.
106 The Commission points out that the arguments put forward by the Italian Republic repeat almost word for word some of the considerations set out in the Opinion of Advocate General Poiares Maduro in Spain v Eurojust, cited in paragraph 20 above. The Commission notes the difference in substance between that case and the present case, since, unlike the situation which Advocate General Poiares Maduro was dealing with in his Opinion in Spain v Eurojust, the contested Decision and vacancy notice do not contain any indication as to the required knowledge of specific Community languages. The fact remains, in the Commission’s view, that a thorough and complete reading of the Advocate General’s Opinion in Spain v Eurojust shows that the approach taken by the Commission in the present case, which is sufficiently limited in time and fully consistent with the language rules applying to the Commission, must be regarded as being in accordance with the principle of linguistic diversity and hence justified, adequate and proportionate.
107 The Commission maintains that the purpose of publishing a vacancy notice for a senior management post is essentially to inform a limited number of specially qualified candidates of the existence of such a vacancy requiring certain specific abilities and considerable professional experience. The notice is certainly addressed to persons outside the Commission and may be contested by external candidates. However, it should at the same time be regarded as a provision adopted in the interest of the service and relating more directly to the internal organisation of the Commission. In that sense it is the external manifestation of internal administrative measures adopted by the Commission to ensure its proper functioning. Consequently, notices of this type do not fall within the scope of the Commission’s relations with the outside world.
108 In the Commission’s view, it follows that neither the Decision nor the vacancy notice are acts which Article 4 of Regulation No 1 requires to be published in all the official languages. More generally, it is clear from case-law that Regulation No 1 does not apply to relations between the institutions and their staff. The Commission considers that that conclusion also applies in respect of candidates in competitions organised by an institution, since such candidates have always been treated in case-law in the same way as officials and servants of the institutions.
109 According to the Commission, the internal language rules of the institutions, of which the vacancy notices are an external extension, do not, in the context of professional relations with the institution concerned, provide for the right to use the language chosen by the official or by the candidate in a selection procedure. What is, however, of particular importance in terms of communication with the institution and its staff or with outside candidates is the possibility for those officials or candidates to be able to acquaint themselves effectively with the provisions that relate to them.
110 In the Commission’s view, the special situation of candidates to which a competition notice or a vacancy notice of the contested type relates justifies the use, during the selection procedures, of vehicular languages determined by the institution concerned. In that regard, it is the necessary existence of a link between the languages used and the abilities needed in order to carry out the duties concerned, together with the fact that no excessive harm is thereby done to the legal interests of potential candidates, that constitute the boundary of the institution’s discretion.
111 The Commission states that, in the exercise of its discretion, an institution may also require candidates for a post to have a knowledge of specific official languages, on the basis of the objective requirements of the service. However, that was not so in the present case since the vacancy notice did not include any specific condition regarding knowledge of one of the three vehicular languages of the Commission in which it was published. The notice merely required that the application documents should be drafted in one of those languages. The vacancy notice is not therefore per se likely to harm in any way the interests of potential candidates as regards their knowledge of languages. The Commission submits that, in view of the nature of the duties and tasks of the Director-General of OLAF, which require the ability to work in a complex multicultural environment, it was fully entitled to stipulate that candidates for the post should know one of the three languages used to communicate within the institution. There is a clearly identifiable link between the use of those three languages and the specific abilities required in order to carry out the duties in question, as described in the vacancy notice.
112 In any event, the Commission considers that there is no evidence of actual harm suffered by the candidates concerned by the vacancy notice due to its publication in only three languages. Publication took place throughout the European Union, including Italy, and therefore any Italian citizen meeting the conditions set out in the vacancy notice could have submitted an application. In fact, Italian nationals are very well represented in numerical terms among the applications received, since they make up around 14 % of the total number of candidates, and only one other country of the Union had a slightly larger number of candidates. Moreover, the number of Italian candidates is not only much greater than the number of German-speaking candidates but they in fact make up more than three times the number of English-speaking candidates. The Commission infers from these figures that the language factor had no effect on the submission of applications and could not have been a deterrent to European citizens whose own language was not one of those in which the vacancy notice was published. Moreover, the Commission did not receive any complaints concerning the language rules chosen, which leads to the conclusion that the candidates to whom the vacancy notice was of concern did not suffer any discrimination on grounds of their language or nationality.
113 Lastly, the Commission considers that, in view of the well-known difficulties as regards translation, the pragmatic approach taken in the present case is largely based on considerations linked to the efficiency and proper functioning of the institution, and does not appear to depart too far from the approach described in paragraphs 92 to 94 of Kik v OHIM, cited in paragraph 89 above.
Findings of the Court
114 First, the Court notes that the Decision applies only to external publication in the Official Journal of vacancy notices for senior management posts at the Commission.
115 Secondly, it should be noted that there is no provision or principle of Community law requiring that such publications should routinely be made in all the official languages.
116 It is indeed correct that such posts are likely to be of potential interest to candidates from any Member State. However, as the Court has already held, the numerous references in the EC Treaty to the use of languages in the European Union, including in particular Articles 290 EC and 314 EC, relied on by the Italian Republic and the interveners, cannot be regarded as evidencing a general principle of Community law that confers a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances (Kik v OHIM, cited in paragraph 89 above, paragraph 82).
117 Nor can the principle that the institutions are required routinely to publish the vacancy notices at issue in the Official Journal in all the official languages be inferred from Regulation No 1. It has thus been held that that regulation does not apply to relations between the institutions and their officials and other servants since it only lays down the language rules applying between the institutions of the European Community and a Member State or a person coming under the jurisdiction of one of the Member States (Case T‑203/03 Rasmussen v Commission [2005] ECR-SC I‑A‑279 and II‑1287, paragraph 60).
118 Officials and other servants of the Communities, and candidates for such posts, fall solely within the jurisdiction of the Communities, as regards application of the provisions of the Staff Regulations, including those relating to recruitment within an institution. Moreover, Article 6 of Regulation No 1 expressly allows institutions to stipulate in their rules of procedure which of the languages are to be used in specific cases (see, to that effect, Case T‑118/99 Bonaiti Brighina v Commission [2001] ECR-SC I‑A‑25 and II‑97, paragraph 13).
119 Applying the same language rules to candidates for posts of officials and other servants of the Communities as to officials and other servants themselves is justified by the fact that such candidates enter into a relationship with a Community institution solely in order to obtain a post of official or other servant for which, as will be explained below, certain knowledge of languages is necessary and may be required by the Community provisions applying in respect of appointment to the post concerned.
120 Nor does Article 18 of the Commission’s Rules of Procedure, also relied on by the Italian Republic, impose a requirement to publish routinely in all languages notices relating to vacant posts within the Commission. That article is irrelevant in the present case, since, according to its own wording, it applies only to instruments as referred to in Articles 249 EC and 161 EA and not to acts such as vacancy notices which the Commission adopts as the Appointing Authority, within the meaning of the relevant provisions of the Staff Regulations.
121 Lastly, the Staff Regulations do not contain any provisions requiring the publication of vacancy notices in all the official languages; however, under Article 29(2), they authorise the Appointing Authority to adopt the procedure which appears to it to be appropriate for the recruitment of senior management staff.
122 Therefore, the Commission was entitled, in the circumstances, to adopt the Decision in order to regulate, under the power conferred on it under Article 6 of Regulation No 1 and Article 29(2) of the Staff Regulations, the question of languages for the external publication of vacancy notices for senior management staff, a question which, as was stated above, constitutes a particular aspect of the procedures for the recruitment of staff in that category. The Italian Republic and the interveners are therefore wrong in pleading that the Commission lacks the necessary competence to adopt the Decision.
123 Thirdly, as regards the allegedly inadequate nature of the statement of reasons for the Decision, an issue raised by the Kingdom of Spain but one which in any event the Court is required to consider, even of its own motion, it should be noted that the extent of the requirement to state reasons depends on the nature of the measure in question, and that in the case of measures intended to have general application the preamble may be limited to indicating the general situation which led to the adoption of the measure in question, on the one hand, and the general objectives which it is intended to achieve, on the other (Case 5/67 Beus [1968] ECR 83, at p. 95, and Case C‑284/94 Spain v Council [1998] I‑7309, paragraph 28).
124 It must be stated that in the present case the Decision complies with the requirements with regard to the statement of reasons mentioned above since it indicates the general situation which led to its adoption and the general objectives which it is intended to achieve, making reference to the translation capacity available within the Commission Directorate-General for Translation. From a reading of the Decision and the documents to which it refers (see paragraphs 5 to 7, 14 and 15 above), it is clear that, in view of the shortage of translation resources, it seeks to reduce requests for translation in order not to exceed available capacity.
125 The Italian Republic and the interveners are wrong in pleading in that regard an alleged inconsistency between the shortage of capacity for translation into the languages of the new Member States and the fact that vacancy notices for senior management staff were not translated into all the languages of the old Member States.
126 The version of the Decision annexed to the application and Commission document PERS (2004) 203, referred to in the version of the Decision which appears in the minutes of the 1 678th meeting of the Commission, make general references to ‘available translation capacity within the Directorate-General for Translation’ or ‘the current overload of work’ in that Directorate-General and not merely to the capacity to translate into the new languages. The reference in both the abovementioned documents to document SEC (2004) 638/6 of 26 May 2004, which concerns capacity for translating into the new official languages, cannot lead to a different conclusion since that is not the only factor justifying the measure adopted in the Decision.
127 Fourthly, it should be noted that, although the Commission is entitled to adopt measures which appear to it to be appropriate in order to regulate aspects of the procedure for recruiting its senior management staff, the fact remains that those measures must not result in discrimination on grounds of language between the candidates for a specific post.
128 On the one hand, such discrimination is expressly prohibited by Article 1d(1) of the Staff Regulations, since Article 1d(6) states that, 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.
129 On the other hand, Article 27 of the Staff Regulations also precludes the Appointing Authority requiring candidates for a post to have a thorough knowledge of a particular official language, where the effect of that language condition is to reserve that post for a specific nationality without such action being justified on grounds connected with the proper functioning of the service (Case 15/63 Lassalle v European Parliament [1964] ECR 31, at p. 38).
130 Therefore, if the Commission decides to publish the full text of a vacancy notice for a senior management post in the Official Journal only in certain languages it must, in order to avoid discriminating on grounds of language between candidates potentially interested in the notice, adopt appropriate measures to inform all the candidates of the existence of the vacancy notice concerned and the editions in which it has been published in full.
131 Provided that condition is met, publication in the Official Journal of a vacancy notice in the category covered by the Decision in a limited number of languages is not likely to lead to discrimination between the various candidates if it is agreed that the latter have an adequate knowledge of at least one of those languages and are thus able duly to acquaint themselves with the content of that notice.
132 In that regard, it is appropriate to note the case-law according to which the fact that documents sent by the administration to one of its officials are written in a language other than that official’s mother tongue, or the first foreign language he has chosen, does not constitute an infringement of the rights of that official if he has an understanding of the language used by the administration which enables him effectively and easily to acquaint himself with the content of the documents in question (see, to that effect, Rasmussen v Commission, cited in paragraph 117 above, paragraphs 62 to 64). That conclusion also holds good in the case of an act addressed to all officials or to candidates in a selection procedure such as a vacancy notice.
133 It should also be noted that, in the light of Article 28(f) of the Staff Regulations, any candidate in a recruitment procedure must have a thorough knowledge of one of the languages of the Communities and a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties. That is the minimum linguistic knowledge needed for the recruitment of Community officials, and institutions may, where appropriate, lay down stricter language conditions for recruitment to a specific post (see, to that effect, Pappas v Committee of the Regions, cited in paragraph 43 above, paragraph 85).
134 Thus, where the requirements of the service or those of the post so require, the institution concerned may legitimately specify the languages where a thorough or satisfactory knowledge is required (conversely, see Lassalle v European Parliament, cited in paragraph 129 above, at pages 37 and 38; see also Opinion of Advocate General Lagrange in that judgment, at page 49). In the latter case, the fact that the text of the vacancy notice concerned is only available in those languages does not result in discrimination between candidates, since they must all have an understanding of at least one of those languages.
135 However, publication of the text of the vacancy notice in the Official Journal in only some Community languages, when persons who have a knowledge only of other Community languages are entitled to submit an application, is likely, in the absence of other measures to enable that category of potential candidates duly to acquaint themselves with the content of that notice, to result in discrimination against them.
136 In that situation, the candidates in question would be in a less advantageous position in relation to the other candidates, since they would not be in a position duly to acquaint themselves with the qualifications required by the vacancy notice and the conditions and procedural rules for recruitment. That is a prerequisite for submitting an application in the best way, to maximise their chances of being accepted for the post concerned.
137 In the present case, the Decision states that external publications of the vacancy notices for senior management posts in the Official Journal will henceforth be in English, French and German only. It therefore excludes publication of the full text of the vacancy notices concerned in editions of the Official Journal published in the other Community languages and does not provide either for publication in those other editions of an advertisement indicating the existence of such a notice with a reference to the English, French and German editions for the full text of it, or the adoption of other equivalent measures.
138 In view also of the fact that the Decision itself was not published in the Official Journal in order to alert readers of editions in languages other than English, French and German to the major change in practice introduced by the Decision there is a significant risk that potential candidates whose mother tongue is not one of the three languages listed in the Decision would not even be informed of the existence of a vacancy notice likely to be of interest to them. Even if those candidates have an understanding of at least one of the languages English, French and German it cannot be presumed that they will look at an edition of the Official Journal other than that published in their mother tongue.
139 Moreover, it should be noted that the Decision refers, in general terms, to all recruitment procedures for senior management posts in the Commission. In the absence of any indication to that effect in the Decision or in the vacancy notice, it cannot be presumed that a knowledge of English, French or German is always a requirement for such posts. Proof of this is that the vacancy notice, which relates specifically to a post in that category, requires only ‘a thorough knowledge of one of the official languages of the European Union and an adequate knowledge of another of these official languages’.
140 The fact relied upon by the Commission that document SEC (2004) 638/6 and the vacancy notice provide that selection procedures for senior management posts will be run exclusively in English, French or German does not lead to a different conclusion. If the Commission considers that, for legitimate reasons linked to the proper functioning of the service, a knowledge of at least one of the languages mentioned above is necessary, it should include an indication to that effect in vacancy notices for such posts. As this was not done in the present case, that argument must be rejected without there being any need to rule on the consequences of restricting the languages to be used during selection procedures as regards the legality of those procedures.
141 In respect of vacancy notices for senior management posts not requiring a knowledge of at least one of the three languages mentioned above, the Decision does not provide for any measure enabling potential candidates without a knowledge of at least one of those languages duly to acquaint themselves with the content of those notices, which are available only in the three languages in question. No provision is even made for such candidates to be able to apply to the Commission in order to obtain a translation of the vacancy notice in question.
142 It follows from all the foregoing that application of the Decision is likely to lead to discrimination on grounds of language between candidates for a selection procedure.
143 The Commission, however, maintains in essence that the likelihood of such discrimination is somewhat hypothetical. The three languages chosen in the Decision are the internal working languages of the Commission and persons applying for the posts concerned will doubtless know at least one of them since they are necessarily highly-qualified. Moreover, in view of the shortage of translation capacity, the Decision is based on considerations linked to the effectiveness and proper functioning of the Commission.
144 These arguments cannot be accepted. As regards, first of all, the fact that the three languages chosen in the Decision are the internal working languages of the Commission, it is clear from case-law that an institution cannot merely address an individual decision to an official drafted in one of those working languages, it must also ensure that the official concerned has an adequate knowledge of the language used, otherwise it must provide him with a translation (see, to that effect, Case T‑197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, paragraphs 45 to 47, and Bonaiti Brighina v Commission, cited in paragraph 118 above, paragraphs 20 and 21).
145 In the light of that case-law, which can be transposed by analogy to candidates for a recruitment procedure, an institution must not simply use the internal working languages in notices for its vacant posts, it must ensure that all potential candidates are in a position to become effectively aware of the existence and content of the vacancy notices in question.
146 In any event, it should be noted that the Decision concerns only the external publication in the Official Journal which, by its very nature, is also addressed to persons outside the Commission, for whom the fact that the languages chosen for publication are the internal working languages of the Commission is irrelevant.
147 Next, it is true that senior management posts necessarily attract particularly well-qualified candidates and it is therefore likely that a number of candidates whose mother tongue is not English, French or German will have a satisfactory knowledge of one or other of those three languages, given that they are fairly widely spoken in Europe. However, that fact is not sufficient to justify the measure adopted in the Decision.
148 Even supposing that to be the case, it does not mean that those candidates will look at the editions of the Official Journal in those three languages and not in their own language. In any event, it cannot be presumed that everyone with the necessary qualifications for senior management posts has a knowledge of English, French or German.
149 Lastly, the argument concerning effectiveness and proper functioning of the Commission must also be rejected. Such considerations cannot justify discrimination prohibited by the Staff Regulations. As Article 1d(6) of the Staff Regulations provides, only ‘legitimate objectives in the general interest in the framework of staff policy’, such as measures relating to a mandatory retirement age or a minimum age for drawing a retirement pension, as referred to in the second sentence of that provision, may justify infringement of the principles of non-discrimination and proportionality. Proper management of translation capacity does not come under staff policy within the meaning of the Staff Regulations.
150 It follows from all the above considerations that, in adopting the Decision, the Commission infringed Article 1d of the Staff Regulations. Moreover, it also infringed, indirectly, Article 27 of the Staff Regulations, since the measure adopted is likely to favour, in the context of procedures for the recruitment of senior management staff, candidates of particular nationalities, namely those from countries in which English, French or German are spoken as the mother tongue, and to adversely affect at least some of the candidates who are nationals of the other Member States.
151 In those circumstances, the Decision must be annulled. The vacancy notice that was published according to the rules laid down in the Decision must also be annulled. The Commission did, however, publish in the national press of the Member States advertisements drafted in all the other languages in order to inform interested persons of the publication in the Official Journal of the vacancy notice, to which reference was made for further information.
152 Even if the publication of the abovementioned advertisements were sufficient to inform candidates whose mother tongue was not English, French or German of the existence of the vacancy notice, the fact remains that the Commission failed to take any measures to enable those candidates who did not know any of those three languages to acquaint themselves with the precise content of that notice. The mere factual circumstances relied on by the Commission, that it did not receive any complaints from candidates in that regard or that Italian nationals are numerically very well represented among the applications received, are not in themselves sufficient to show that the abovementioned omission on the part of the Commission was not likely to infringe the rights of some candidates.
153 In view of all the above considerations, the action must be upheld and the Decision and the vacancy notice must be annulled.
Costs
154 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(4) of those rules, the Member States and institutions which intervened in the proceedings are to bear their own costs.
155 In the present case, the Commission has been unsuccessful. However, the Italian Republic did not apply for costs. In those circumstances, each party must be ordered to bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby:
1. Annuls the decision adopted by the Commission at its 1 678th meeting on 10 November 2004, whereby external publications of the vacancy notices for senior management posts in the Official Journal of the European Union would henceforth be in English, French and German for a period ending 1 January 2007;
2. Annuls vacancy notice COM/2005/335 for the post of Director-General (grade A*15/A*16) of the European Anti-Fraud Office (OLAF), published by the Commission on 9 February 2005 (OJ 2005 C 34 A, p. 3);
3. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 20 November 2008.
[Signatures]
Table of contents
Legal context
Background to the case
Procedure and forms of order sought
Law
Admissibility
The right of Member States to bring proceedings under Article 230 EC against acts of the institutions concerning their relations with their officials and other servants
– Arguments of the parties
– Findings of the Court
Status of the Decision and the vacancy notice as acts that are open to challenge, for the purposes of the first paragraph of Article 230 EC
– Arguments of the parties
– Findings of the Court
Time-limit for bringing an action against the Decision
– Arguments of the parties
– Findings of the Court
Substance
Arguments of the parties
Findings of the Court
Costs