The General Court of the European Union has recently annulled three EU competition notices which required the candidates to choose English, French or German as their second language and as the language of communication with EPSO, the European Union recruitment office.
In December 2012 and January 2013, the European Personnel Selection Office (EPSO) had published three open competition notices which expected candidates to have a thorough knowledge of one of the official languages of the EU (23 languages at the time) and a satisfactory knowledge of a second language to be chosen among English, French or German.
This second language had to be used for all communications between the candidates and EPSO and in the tests for the competition. EPSO explained that the restriction was justified, in particular, by the interests of the service, so that candidates were immediately operational and able to communicate efficiently in their daily work; otherwise, the effective functioning of the Institutions would be severely impaired.
Italy and Spain requested the General Court to annul these competition notices, arguing that they were discriminatory and that they infringed the language regime of the EU as well as the principle of proportionality. The two member states challenged on the one hand the obligation to choose English, French or German as the language of communication with EPSO, and on the other hand, the constraint to use the same second language for the competitions concerned.
In its judgement of 24th September, in the cases T-124/13 and T-191/13, the General Court accepts the arguments put forward by the complainants, annulling the competition notices.
Italy stressed in its submission that all European citizens have the right to address the EU Institutions using any one of the 23 official languages, as well as to receive answers from the Institutions in the same language. The constraint imposed on candidates whose official language is not English, French or German, affirms the Italian government, constitutes discrimination against citizens. Moreover, as suggested by Spain, that limit confers a competitive advantage on all candidates whose first language is one of the three languages mentioned above.
Citing a judgement of the Court of Justice on that subject, the General Court states that even if the Institutions may determine the detailed rules for the language regime in their internal rules, the Institutions concerned by the contested notices did not use that option, since competition notices cannot in any way be regarded as internal rules.
Thus, in the absence of other relevant provisions, the relations between the Institutions and their officials and agents fall within the scope of Regulation No 1 of 1958 determining procedures for effecting the communications prescribed under Article 41 of the Treaty. The same is true as regards relations between the Institutions and candidates for an external competition who are not, in principle, either officials or agents.
The General Court adds that, unlike the Office for Harmonisation in the Internal Market (OHIM), the Institutions concerned by the contested notices are not subject to a specific language regime. The General Court concludes that the contested notices infringe Regulation No 1 on the ground that they limit correspondence with EPSO to the three languages mentioned above.
The EU judges explained that candidates are entitled to choose the language in which to draft the application form from any of the official languages and that correspondence from EPSO must also be written in the language chosen by candidates. The use of one of the three languages by a candidate who would have preferred to communicate with EPSO in another official language does not, contrary to the Commission’s arguments, ensure clarity and understanding of communications between EPSO and the candidates.
As to the obligation for the candidates to choose English, French or German as a second language for the competition, the General Court again refers to the case-law of the Court of Justice, according to which limiting choice to a small number of languages constitutes discrimination on grounds of language. It is clear that such a requirement favours certain potential candidates (namely those who have a satisfactory knowledge of at least one of the designated languages), since they may participate in the competition and thus be recruited as officials or agents of the EU, whereas the others who do not have such knowledge are excluded.
According to the General Court, the claim that English, French or German remain the most widely used languages, taking account in particular of the longstanding practice in the EU with regard to internal communications, is a vague statement which is not supported by any specific evidence. It cannot be presumed that a newly recruited official who does not master one of the working languages or languages of deliberation in an Institution is incapable of immediately carrying out useful work in the Institution concerned. Moreover, says the Court, the statistics produced by the Commission do not support its assertions regarding the use of languages within the European Institutions.
The Court concludes thus that the Commission has not established that the limitation concerned is in the interests of the service. In its view the obligation for candidates to choose English, French or German as a second language is not objectively justified or proportionate to the objective pursued by the Commission, namely to recruit officials and agents who are immediately operational.
Asked to comment on the judgement, the Commission could only confirm that they had read it carefully and that they were in the process of analysing the practical consequences on future competition notices, but refused to comment on a second issue which is at stake ’between the lines’.
The EU Institutions have in fact taken the habit of applying the same, if not stricter policy, in their calls for tender for services as well. In a recent call to provide communication services to a Commission DG, it was clearly established that all documents providing evidence of the capability of the bidder to participate to the call had to be submitted in English. The provision also concerned the CVs of all the experts, all correspondence and documents related to the tender exchanged by the tenderer and the Contracting Authority as well as extracts from the consolidated profit and loss accounts.
It is clear that such a request creates a de-facto competitive advantage for companies established in UK and Ireland, obliging companies belonging to the countries using any one of the other 22 official languages to go through a lengthy and painful (and expensive) process of translation and authentication of the relevant documents.
EU candidates – and EU companies – are thus looking forward to learning about the results of the ongoing Commission analysis, hoping that they will come before the results of the UK referendum.