Cases T‑353/14 and T‑17/15

(publication by extracts)

Italian Republic

v

European Commission

(Rules on languages — Notices of open competition for the recruitment of administrators — Choice of second language from three languages — Regulation No 1 — Article 1d(1), Article 27 and Article 28(f) of the Staff Regulations — Principle of non-discrimination — Proportionality)

Summary — Judgment of the General Court (Eighth Chamber), 15 September 2016

1.      Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects – General provisions applicable to open competitions — Measure not including new rules going beyond obligations arising from EU law — Exclusion

(Art. 263 TFEU)

2.      Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects – Notices of open competition providing for a limitation on the choice of second language for participation in the competition — Inclusion

(Art. 263 TFEU; Staff Regulations, Annex III, Art. 1(1)(e))

1.      In order to assess whether texts intended to establish binding rules may form the subject-matter of an action under Article 263 TFEU, it is necessary to examine their content. In the absence of specific or new obligations being established, the mere publication of a communication is not sufficient to conclude that that communication constitutes a measure capable of producing binding legal effects.

As regards the General Rules applicable to open competitions published in the Official Journal of the European Union by the European Personnel Selection Office (EPSO), including the General Guidelines of the College of the Heads of Administration on the use of languages in EPSO competitions, it is clear from the actual wording of those texts that, in publishing them, EPSO has not definitively decided on the language rules for all competitions which it is responsible for organising. The General Rules and the General Guidelines expressly reserve the choice of the language rules for each competition to the competition notice which will be adopted when the procedure to which it refers is opened. Therefore, the texts at issue cannot be regarded as creating specific or new obligations.

Moreover, and in any event, even if the General Rules and the General Guidelines include a series of assessments according to which the choice of the second language of the competitions organised by EPSO and the language of communication between EPSO and the candidates is to be limited to German, English and French, those assessments cannot be interpreted as establishing language rules applicable to all competitions organised by EPSO, given that no provision has conferred on EPSO or the College of the Heads of Administration the power to establish such rules of general application or to adopt, in that regard, basic rules which a competition notice may avoid only in exceptional cases. In that regard, EPSO is not precluded, for the purposes of ensuring equal treatment and legal certainty, from adopting and publishing measures such as the General Rules and the General Guidelines setting out how it intends to make use, in certain circumstances, of the discretion which those provisions confer on it. Nevertheless, EPSO is bound by those texts only insofar as they do not depart from the rules of general application governing its powers and provided that, in adopting those texts, it does not give up the power conferred on it in the assessment of the needs of the institutions and bodies of the European Union, including their linguistic needs, when organising the various competitions.

It must be concluded that the General Rules and the General Guidelines must be interpreted as constituting, at most, communications, which set out criteria by which EPSO intends to choose the language rules for the competitions which it is responsible for organising.

(see paras 47, 49, 50, 52, 53, 57, 58)

2.      An action for annulment is available in the case of all measures adopted by the institutions of the European Union, whatever their nature or form, which are intended to have legal effects, that is to say, which bring about a change to the legal situation as it existed before they were adopted. It follows that any measure not producing legal effects which are binding on and capable of affecting the interests of the individual, such as confirmatory measures and implementing measures, falls outside the scope of judicial review provided for in Article 263 TFEU. More specifically, as regards confirmatory measures, a measure is regarded as being a mere confirmation of an earlier individual measure where it contains no new factors by comparison with that earlier measure and was not preceded by any re-examination of the situation of its addressee. That reasoning can be transposed to the case of measures which may not be regarded as individual, such as a regulation or a competition notice. As regards implementing measures, such measures do not give rise to any rights or obligations for third parties, but arise in the context of the implementation of an earlier measure which is intended to produce binding legal effects, where all the elements of the rule expressed by that earlier measure have already been defined and adopted.

As regards competition notices, each competition notice is adopted with a view to introducing rules on the conduct of one or more particular competitions, the regulatory framework of which is laid down in that notice in accordance with the objective set by the appointing authority. It is that regulatory framework, set up, where appropriate, in accordance with the rules of general application on the conduct of competitions, which governs the competition procedure from publication of the notice in question until publication of the reserve list containing the names of the successful candidates in the competition concerned. Therefore, a competition notice which, by taking into account the specific needs of the institutions or bodies of the European Union concerned, introduces the regulatory framework for a particular competition, including its language rules, and thus has independent legal effects, cannot, in principle, be regarded as a measure which confirms or merely implements earlier measures. Although the appointing authority, as appropriate, when carrying out its tasks of adopting a competition notice, must respect or apply rules set out in earlier measures of general application, the regulatory framework of each competition must, nevertheless, be established and specified by the relevant competition notice which thus explains the conditions of eligibility for the post or posts in question.

Consequently, notices of open competition limiting the choice of second language to a restricted number of languages constitute measures which have binding legal effects as regards the language rules for the competitions in question, and therefore constitute acts which are open to challenge. The fact that, when they were adopted, EPSO took into consideration criteria set out in the General Rules and in the General Guidelines, which the contested notices expressly refer to, cannot call into question that conclusion.

(see paras 61-64, 66, 67, 70)