Opinion of Advocate General Bobek delivered on 25 July 2018.

• Jurisdiction: European Union
• Celex Number: 62016CC0621
• ECLI: ECLI:EU:C:2018:611
• Date: 25 July 2018
• Docket Number: C-621/16
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de casación - infundado

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 25 July 2018(1)

Case C‑621/16 P

European Commission

v

Italian Republic

(Appeal — Language rules of the EU institutions — Notices of open competition — Limitation of the second language of competition and of the language of communication between candidates and EPSO to English, French and German — Regulation No 1 — EU Staff Regulations — Recruitment of officials — Discrimination based on language — Justifications)

I. Introduction

1. In 2014, the European Personnel Selection Office (‘EPSO’) published two notices of open competition. Those notices allowed candidates to choose only English, French or German as the second language for those competitions. Moreover, the notices permitted the use of only those three languages for communications between candidates and EPSO.

2. By an action brought before the General Court, the Italian Republic contested the legality of that dual limitation to those three languages. By its judgment of 15 September 2016, Italy v Commission (T‑353/14 and T‑17/15, EU:T:2016:495), the General Court annulled both notices.

3. By the present appeal, the Commission challenges the judgment of the General Court, thus inviting this Court, once again, (2) to take a position on the legal limits on restrictions of the languages that EPSO may impose on candidates wishing to take part in open competitions.

II. Legal framework

A. Primary law

1. Treaty on the Functioning of the European Union

4. Pursuant to the fourth subparagraph of Article 24 TFEU: ‘Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language.’

5. Article 342 TFEU states: ‘The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations.’

2. Charter of Fundamental Rights of the European Union (‘the Charter’)

6. According to Article 21(1) of the Charter: ‘Any discrimination based on any ground such as … language … shall be prohibited.’

7. Article 41(4) of the Charter reads as follows: ‘Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.’

B. Secondary law

1. Regulation No 1

8. Articles 1, 2, 5 and 6 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community, (3) as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (4) (‘Regulation No 1’), state:

‘Article 1

The official languages and the working languages of the institutions of the Union shall be Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, 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 [Union] may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language.

…

Article 5

The Official Journal of the European Union shall be published in the official languages.

Article 6

The institutions of the [Union] may stipulate in their rules of procedure which of the languages are to be used in specific cases.’

2. The Staff Regulations

9. Article 1d of the Staff Regulations of Officials of the European [Union], (5) as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (6) (‘the Staff Regulations’) reads as follows:

‘1. In the application of these Staff Regulations, any discrimination based on any ground such as … language … 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 …’

10. Title III of the Staff Regulations is entitled ‘Career of officials’. Chapter 1 thereof, entitled ‘Recruitment’, is composed of Articles 27 to 34.

11. Pursuant to the first subparagraph of Article 27 of the Staff Regulations: ‘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 Union. No posts shall be reserved for nationals of any specific Member State.’

12. Article 28 of the Staff Regulations states:

‘An official may be appointed only on condition that:

(a) he is a national of one of the Member States of the Union, unless an exception is authorised by the appointing authority, and enjoys his full rights as a citizen;

(b) he has fulfilled any obligations imposed on him by the laws concerning military service;

(c) he produces the appropriate character references as to his suitability for the performance of his duties;

(d) he has, subject to Article 29(2), passed a competition based on either qualifications or tests, or both qualifications and tests, as provided in Annex III;

(e) he is physically fit to perform his duties; and

(f) he produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union to the extent necessary for the performance of his duties.’

13. According to Article 30 of the Staff Regulations:

‘For each competition, a selection board shall be appointed by the appointing authority. This board shall draw up a list of suitable candidates.

The appointing authority shall decide which of these candidates to appoint to the vacant posts.

…’

14. Annex III to the Staff Regulations is entitled ‘Competitions’. Article 1(1) thereof provides:

‘Notice of competitions shall be drawn up by the appointing authority after consulting the Joint Committee.

The notice shall state:

…

(f) where applicable, the knowledge of languages required in view of the special nature of the posts to be filled;

…’

15. Article 7(1) and (2) of Annex III to the Staff Regulations states:

‘1. The institutions shall, after consultation of the Staff Regulations Committee, entrust the European Personnel Selection Office (hereinafter ‘the Office’) with responsibility for taking the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the Union and in the assessment and in the examination procedures referred to in Articles 45 and 45a of the Staff Regulations.

2. The Office’s task shall be to:

(a) organise, at the request of individual institutions, open competitions;

…’

3. Decision 2002/620

16. Pursuant to Article 2(1) of Decision 2002/620/EC, establishing EPSO: (7)

‘The Office shall exercise the powers of selection conferred under the first paragraph of Article 30 of the Staff Regulations and under Annex III thereto on the appointing authorities of the institutions signing this Decision. In exceptional cases only and with the agreement of the Office, the institutions may hold their own open competitions to meet specific needs for highly specialised staff.’

17. Article 4 of Decision 2002/620 provides:

‘In accordance with Article 91a of the Staff Regulations, requests and complaints relating to the exercise of the powers conferred under Article 2(1) and (2) of this Decision shall be lodged with the Office. Any appeal in these areas shall be made against the Commission.’

III. Facts and legal proceedings

18. On 13 March 2014, EPSO published the notice of open competition EPSO/AD/276/14 to draw up a reserve list of administrators (AD 5) (8) (‘the general competition notice’).

19. On 6 November 2014, EPSO published the notice of open competition EPSO/AD/294/14 to draw up a reserve list of administrators (AD 6) in the field of data protection for the European Data Protection Supervisor (9) (‘the data protection competition notice’).

20. The general competition notice and the data protection competition notice (together, ‘the contested notices’) both state in the introductory section that the General Rules governing open competitions (‘the General Rules’) (10) are an ‘integral part’ of each competition notice.

21. The General Rules were published by EPSO in the Official Journal of the European Union. The introductory section of the General Rules states that ‘these general rules are an integral part of the competition notice, and together with the notice they constitute the binding framework of the competition procedure’.

22. In a section entitled ‘Knowledge of languages,’ after noting that ‘unless otherwise stated in the competition notice the choice of second language will normally be limited to English, French or German’, the General Rules provide reasons for the limitation of the second language. That section of the General Rules further refers to the ‘General Guidelines on the use of languages in EPSO competitions’ adopted by the College of Heads of Administration on 15 May 2013 (‘the General Guidelines’). The General Guidelines are annexed to the General Rules and provide a more specific justification for the limitation of the choice of second language to English, French or German.

23. In each of the contested notices, Section III on ‘Eligibility’ sets out general conditions as well as specific conditions. The specific conditions include the requirement of knowledge of two languages: a thorough knowledge of one of the official languages of the European Union, defined as the ‘main language’ or ‘language 1’, and a satisfactory knowledge of English...