Case C‑621/16 P
European Commission
v
Italian Republic
Judgment of the Court (Grand Chamber), 26 March 2019
(Appeal — Rules on languages — Open competition for the recruitment of administrators — Notice of competition — Administrators (AD 5) — Administrators (AD 6) in the field of data protection — Knowledge of languages — Restriction of the choice of language 2 of the competitions to English, French and German — Language of communication with the European Personnel Selection Office (EPSO) — Regulation No 1 — Staff Regulations — Discrimination based on language — Justification — Interests of the service — Judicial review)
1. Action for annulment — Actionable measures — Measures producing binding legal effects — Notice of competition issued by the European Personnel Selection Office (EPSO) with a view to drawing up a reserve list of administrators — Included
(Art. 263 TFEU; Staff Regulations, Art. 29(1), and Annex III, Art. 1(1))
(see paragraphs 44, 45, 49-55)
2. Officials — Competitions — Holding of an open competition — Languages of participation in tests — Restriction of the choice of second language — Discrimination based on language — Justification having regard to the interests of the service — Observance of the principle of proportionality
(Staff Regulations, Arts 1d, 27 and 28(f))
(see paragraphs 65-68, 80-83, 88-92, 102)
3. Officials — Competitions — Holding of an open competition — Languages of participation in tests — Restriction of the choice of second language — Judicial review — Scope
(Staff Regulations, Art. 1d)
(see paragraphs 91-95, 102-104, 107)
4. Officials — Competitions — Holding of an open competition — Languages of communication between the European Personnel Selection Office (EPSO) and the candidates — Restriction — Lawfulness — Statement of reasons — Justification having regard to the interests of the service — Observance of the principle of equal treatment between candidates
(Staff Regulations, Art. 1d(1) and (6) and Annex III, Art. 1; Council Regulation No 1, Arts 2 and 5)
(see paragraphs 117-126)
Résumé
By its judgment of 26 March 2019 in Commission v Italy (C‑621/16 P), the Court of Justice confirmed, on appeal, the judgment of the General Court, (1) which had annulled, on the basis of Articles 1d and 28 of the Staff Regulations of Officials of the European Union, of Article 1(2) of Annex III to those Staff Regulations and of Article 1 of Council Regulation (EEC) No 1/58, (2) two notices of open competition issued by the European Personnel Selection Office (EPSO) with a view to drawing up a reserve list of administrators. Those notices restricted the choice of the second language of the selection procedure and the languages of communication with EPSO to English, French and German only.
As regards, in the first place, the admissibility of the actions at first instance, the Court of Justice first recalled that actions for annulment are available in the case of all measures adopted by the institutions, which are intended to have binding legal effects, whatever their nature or form. Next, the Court of Justice held that the General Court correctly concluded, in the light of the legal nature of the notices of competition at issue, that those notices did not constitute measures which confirm or merely implement the general rules governing open competitions, but measures which have ‘binding legal effects as regards the language rules for the competitions at issue’, and therefore constitute acts which are open to challenge. In that regard, the Court of Justice pointed out that the organisation of a competition is governed by a notice, which lays down the essential elements of that competition, such as the knowledge of languages required in view of the special nature of the posts to be filled, in accordance with the provisions of Annex III to the Staff Regulations. That notice thus lays down the ‘regulatory framework’ for the competition in question in accordance with the objective set by the appointing authority and, accordingly, produces binding legal effects. That assessment of the legal nature of the notices of competition was, in this case, borne out both by the wording of the general rules governing open competitions adopted by EPSO and by that of the notices of competition at issue.
In the second place, as to the exercise of judicial review and the intensity of review applied by the General Court, the Court of Justice recalled that EU institutions must enjoy a wide discretion in the organisation of their departments and, in particular, in the determination of the criteria of ability required for the positions to be filled and, in the light of those criteria and in the interests of the service, in the determination of the conditions and procedure for organising competitions. However, that discretion is governed in mandatory terms by Article 1d of the Staff Regulations, which prohibits any discrimination on grounds of language and provides that differences in treatment based on language resulting from restrictions on the language regime of a competition to a limited number of official languages can only be accepted if such a restriction is objectively justified and proportionate to the actual needs of the service. In addition, any requirement relating to specific language skills must be based on clear, objective and predictable criteria enabling candidates to understand the reasons for that requirement and allowing the EU judicature to review the lawfulness thereof.
Since the lawfulness of the restriction depends on it being justified and proportionate, the General Court was right to undertake, in the case at hand, an assessment of whether in fact, in particular, the notices of competition at issue, the general rules governing open competitions and the evidence provided by the Commission included ‘concrete indications’ capable of establishing, objectively, whether the interests of the service justified the restriction of the choice of second language in the competition. The General Court must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of supporting the conclusions drawn from it.
Finally, in the third place, as regards the restriction of the choice of the languages of communication between candidates and EPSO, the Court of Justice held that the reasoning followed by the General Court, according to which Regulation No 1/58 governed any restriction to the official languages required for communications between EPSO and candidates to the competitions, was flawed. It is true that the Court held, in the judgment in Italy v Commission (C‑566/10 P), (3) that in the absence of special rules applicable to officials and servants in the internal rules of the institutions concerned by the notices of competition at issue in this case, relations between those institutions and their officials and servants are not totally excluded from the scope of Regulation No 1/58. Nevertheless, the Court added that that clarification does not apply to the languages of communication between EPSO and candidates, but the languages in which those notices of competition are published. Accordingly, in the context of EU personnel selection procedures, differences in treatment as regards the language arrangements for competitions may be permitted pursuant to Article 1d(6) of the Staff Regulations. However, in the present case, the Court of Justice held that the General Court correctly concluded that the grounds given in order to justify the choice of the languages of communication were not capable of justifying, within the meaning of Article 1d(1) and (6) of the Staff Regulations, the restriction on the choice of the languages of communication with EPSO, since the notices of competition at issue did not specify upon which objectively verifiable elements that restriction was based, which must be proportionate to the actual needs of the service.