Case T‑555/22

French Republic

v

European Commission

 Judgment of the General Court (Sixth Chamber) of 8 May 2024

(Rules on languages – Notice of open competition for the recruitment of administrators and experts in the fields of defence industry and space – Restriction of the choice of language 2 to English – Regulation No 1 – Article 1d(1), Article 27 and Article 28(f) of the Staff Regulations – Discrimination on grounds of language – Interest of the service – Proportionality)

Officials – Competitions – Conduct of an open competition – Languages for participation in the tests – Restriction of the choice of second language – Discrimination on grounds of language – Justification in the light of interest of the service – Compliance with the principle of proportionality – Burden of proof

(Charter of Fundamental Rights, Arts 21(1) and 22; Staff Regulations of Officials, Arts 1d(1), 27 and 28(f) and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)

(see paragraphs 23-29, 35-39, 65-69, 72, 88, 89)

Résumé

Hearing an action brought by the French Republic, supported by three other Member States intervening in the proceedings, namely the Kingdom of Belgium, the Hellenic Republic and the Italian Republic, the General Court annuls notice of open competition EPSO/AD/400/22. The purpose of that competition was to draw up reserve lists from which to recruit administrators and experts in the fields of defence industry and space within the European Commission. In these proceedings, the Court rules for the first time on the lawfulness of the language regime of an open competition which restricts the choice of the second language of that competition to one official EU language (English) and stipulate that all the main tests in that competition must be taken only in that language.

In this case, the French Republic claimed that the notice of competition in question infringed Article 1d of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), read in the light of Articles 21 and 22 of the Charter of Fundamental Rights of the European Union, relating to the principle of non-discrimination and respect for linguistic diversity, respectively. The applicant explained that, in view of the use and usefulness of official EU languages other than English within the Commission, in particular French, the plea alleging the need for persons recruited to be immediately operational was no justification for such a restriction, since the latter did not meet the real needs of the service. The applicant added that, in any event, the Commission had failed to demonstrate that such discrimination was proportionate.

Findings of the Court

As a preliminary point, the Court states that limiting the choice of the second language of candidates in a competition to a restricted number of languages, to the exclusion of the other official languages, constitutes discrimination on grounds of language, which is in principle prohibited under Article 1d(1) of the Staff Regulations. Certain potential candidates who have a satisfactory knowledge of at least one of the designated languages are favoured since they may participate in the competition and thus be recruited as officials or servants of the European Union, whereas others who do not have such knowledge are excluded.

The broad discretion enjoyed by the EU institutions with regard to the organisation of their departments, like the European Personnel Selection Office (EPSO) where the latter exercises the powers conferred on it by those institutions, is therefore governed in mandatory terms by Article 1d of the Staff Regulations. Therefore, differences of treatment based on language resulting from a restriction on the language regime of a competition to a limited number of official languages can only be accepted if such a restriction is objectively justified and proportionate to the real needs of the service. In addition, any requirement relating to specific language skills must be based on clear, objective and foreseeable criteria enabling candidates to understand the reasons for that requirement and allowing the Courts of the European Union to review the lawfulness thereof.

Discrimination on grounds of language may be justified by the interest of the service in having officials with a command of the language or languages used by the service in question so that they will be immediately operational. However, it is for the institution which has limited the language regime of a selection procedure to a restricted number of official languages of the European Union to establish that such a restriction is indeed appropriate for the purpose of meeting the real needs relating to the duties that the persons recruited are required to carry out, that it is proportionate to those needs and that it is based on clear, objective and foreseeable criteria. The Court, for its part, must carry out an actual assessment of the objectively justified and proportionate nature of that restriction in the light of those needs.

First, with regard to the objective justification for the language restriction by the real needs of the service, such a restriction must relate to the duties that the persons recruited will be required to perform. In other words, it is for the Commission to demonstrate that the duties described in the notice of competition require in themselves a command of English at B2 level. In the present case, however, the Commission does not link the need for the persons recruited to have a command of English at B2 level in order to be immediately operational to the particular duties those persons will be required to perform, but to the mere circumstance that those persons will have to perform those duties in services in which the current staff use mainly English in carrying out those duties. Such a line of argument, which amounts merely to saying that duties must be carried out in English because they are currently being carried out in that language, does not therefore, as a matter of principle, establish that the language restriction at issue is suitable for meeting the real needs of the service in respect of the duties which the persons recruited will be called upon to perform. Moreover, the existence of an alleged ‘established fact’ is not consistent with the situation of a recently established service in the process of building up its staff at the time of the publication of the notice of competition. In any event, the Court states that the Commission’s line of argument is not sufficiently substantiated by the documents submitted to that effect. It follows that the Commission has failed to demonstrate that the language restriction was justified.

Secondly, as regards the proportionality of the language restriction, it is a matter for the institutions to weigh up the legitimate objective justifying the restriction of the number of languages of competitions against the opportunities for recruited officials to learn, within the institutions, the languages necessary in the interest of the service. By not having carried out such a weighing up, the Commission has failed to demonstrate to the requisite legal standard that the language restriction at issue was proportionate to the needs of the service.