Contents
Judgment of the General Court (Ninth Chamber)9 September 2020note(Rules on languages — Notice of open competition for the recruitment of administrators in the field of audit — Knowledge of languages — Limitation of the choice of the second competition language to English, French and German — Language of communication — Regulation No 1 — Article 1d(1), Article 27 and Article 28(f) of the Staff Regulations — Discrimination based on language — Justification — Interests of the service — Proportionality)In Case T‑437/16,Italian Republic, represented by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,supported byKingdom of Spain, represented by L. Aguilera Ruiz, acting as Agent,vEuropean Commission, represented by G. Gattinara and D. Milanowska, acting as Agents,THE GENERAL COURT (Ninth Chamber),composed of M.J. Costeira, President, D. Gratsias (Rapporteur) and M. Kancheva, Judges,Registrar: J. Palacio González, Principal Administrator,having regard to the written part of the procedure and further to the hearing on 5 December 2019,gives the following
Judgment
I.Background to the dispute
1On 12 May 2016, the European Personnel Selection Office (EPSO), created by Decision 2002/620/EC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 (OJ 2002 L 197, p. 53), published in the Official Journal of the European Union the notice of open competition EPSO/AD/322/16 to draw up reserve lists of administrators in the field of audit (AD 5/AD 7) (OJ 2016 C 171 A, p. 1, ‘the contested notice’). As is stated in that notice, the lists in question would be used by the institutions of the European Union, ‘primarily the European Commission in Brussels and the European Court of Auditors in Luxembourg’ to recruit new members of the EU civil service.
2It is also stated in the introduction to the contested notice that the latter, together with the general rules governing open competitions published in Official Journal of the European Union of 27 February 2015 (OJ 2015 C 70 A, p. 1, ‘the general rules’), forms the legally binding framework for the selection procedure concerned. It is specified, however, that Annex II to those general rules, entitled ‘General guidelines of the College of the Heads of Administration on the use of languages in EPSO competitions’, does not apply to selection procedure in question, and is replaced by the provisions in Annex II to the contested notice.
3Section 1.3 of the general rules contains a section entitled ‘Knowledge of languages’ which states:‘Depending on the competition you will be asked to demonstrate your knowledge of the official EU languages … As a general rule you will need a thorough knowledge [level C1 of the Common European Framework of Reference for Languages (CEFR)] of one official EU language and a satisfactory knowledge (level B2 of the CEFR) of another one. However, the competition notice may impose stricter requirements (this is the case, in particular, for linguist profiles). Unless otherwise stated in the competition notice the choice of second language will normally be limited to English, French or German …It has long been the practice to use mainly English, French, and German for internal communication in the EU institutions and these are also the languages most often needed when communicating with the outside world and dealing with cases.The second language options for competitions have been defined in the interests of the service, which require new recruits to be immediately operational and capable of communicating effectively in their daily work. Otherwise the efficient functioning of the institutions could be severely impaired.To ensure equal treatment for all candidates, everyone – including those whose first official language is one of the three – must take certain test in their second language, chosen from among these three. Assessing specific competencies in this way allows the institutions to evaluate candidates’ ability to be immediately operational in an environment that closely matches the reality they would face on the job. None of this affects the possibility of later language training to enable staff to work in a third language, as required under Article 45(2) of the Staff Regulations …’
4In the part of the contested notice entitled ‘Am I eligible to apply?’, which sets out the conditions to be met by the persons concerned when they validate their applications, the specific conditions for eligibility include the requirements of a ‘minimum level – C1 [of the CEFR] in 1 of the 24 official EU languages’ designated as ‘language 1’ of the competition, and a ‘minimum level – B2 [of the CEFR] in English, French or German’. That second language, designated as ‘language 2’ of the competition, must be different from the language chosen by the candidate as language 1.
5It is also stated that ‘you must fill in your application form in English, French, or German’.
6In the same part of the contested notice, it is stated that ‘the second language chosen must be English, French, or German’, that ‘these are the main working languages of the EU institutions and [that], in the interests of the service, new recruits must be immediately able to work and communicate effectively in their daily work in at least one of them’. In that connection, candidates are requested to refer to Annex II to the contested notice, entitled ‘Justification of the language regime for this selection procedure’, ‘for additional information on the languages required for this competition’.
7Annex II to the contested notice contains an introductory part consisting of six paragraphs followed by three numbered points, the first of which is entitled ‘Justification for selecting languages for each selection procedure’, the second ‘Criteria for selecting languages for each selection procedure’, and the third ‘Languages of communication’.
8The introductory part of Annex II to the contested notice is worded as follows:‘This competition is a specialist competition to recruit Administrators in the field of Audit. The requirements set out in the “AM I ELIGIBLE TO APPLY?” section of this Notice of Competition are in line with the EU institutions’ primary requirements for specialist skills, experience and knowledge and the need for new recruits to be able to work effectively, in particular with other members of staff.For this reason, candidates are required to select their second competition language from a limited number of EU official languages. This limitation is also due to budgetary and operational constraints and the nature of EPSO’s selection methods described in points 1, 2 and 3 below. The language requirements for this competition have been adopted by the EPSO Management Board taking into account these factors and other specific requirements relating to the nature of the duties or the particular needs of the EU institutions …The main purpose of this competition is to create a reserve of administrators for recruitment within the European Commission, as well as a limited number for recruitment within the European Court of Auditors. Once recruited, it is essential that the administrators are operational immediately and are able to communicate with their colleagues and managers. In the light of the criteria on the use of languages in EU selection procedures set out under point 2 below, the EU institutions consider that English, French and German are the most appropriate second language options for this competition.Given the fact that English, French and German are the languages most frequently spoken, translated and used for administrative communication by staff in the EU institutions, candidates must offer at least one of them among their two compulsory languages.Furthermore a good command of English, French or German is deemed to be essential for analysing the situation of the auditees, making presentations, holding discussions and writing reports, so as to ensure effective cooperation and information exchange with the services being audited and the appropriate authorities.Candidates must use their second competition language (English, French or German) when filling in the online applications and EPSO must use these languages for mass communication to candidates who have submitted a valid application and for some tests described under point 3.’
9Point 1 of Annex II to the contested notice, entitled ‘Justification for selecting languages for each selection procedure’ states:‘The EU institutions believe that the decision on the specific languages to be used in each individual selection procedure and, in particular, any restriction of the choice of languages, must be made on the basis of the following considerations:(i) Requirement that new recruits be immediately operationalNew recruits need to be immediately operational and capable of performing the duties for which they were recruited. Therefore, EPSO must ensure that successful candidates possess adequate knowledge of a combination of languages that will enable them to carry out their duties in an effective manner and in particular that successful candidates are able to communicate effectively in their daily work with their colleagues and managers.It may therefore be legitimate to organise some tests in a limited number of vehicular languages to ensure that all candidates are able to work in at least one of these, whatever their first official language. Failure to do so would create a high risk that a substantial proportion of successful candidates would be unable to undertake the tasks for which they are recruited within a reasonable timeframe. Moreover, it would neglect the evident consideration that candidates applying to work in the EU civil service are willing to join an international organisation that must make use of vehicular languages in order to work properly and carry out the tasks entrusted to it under the EU Treaties.(ii) The nature of the selection procedureIn some cases, limiting candidates’ choice of languages may also be justified by the nature of the selection procedure.In line with Article 27 of the Staff Regulations, EPSO assesses candidates in open competitions which it uses to evaluate candidates’ skills and better predict whether candidates will be capable of performing their duties.The assessment centre is a selection method that consists of evaluating candidates in a standardised manner, based on various scenarios observed by several selection board members. The assessment uses a competency framework drawn up in advance by the appointing authorities and a common scoring method and joint decision making.Assessing specific skills in this way enables the EU institutions to evaluate candidates’ ability to be immediately operational in an environment that closely matches the reality of the job. A substantial body of scientific research has shown that assessment centres simulating real-life working situations are the best predictor of real-life performance. Assessment centres are therefore used worldwide. Given the length of careers and the degree of mobility within the EU institutions this kind of assessment is crucial, in particular when selecting permanent officials.To ensure that candidates can be assessed on an equal footing and can communicate directly with assessors and the other candidates taking part in an exercise, candidates are assessed together in a group with a common language. Unless the assessment centre takes place in a competition with a single main language, this necessarily requires that the assessment centre be organised in a restricted number of languages.(iii) Budgetary and operational constraintsFor several reasons, the EPSO Management Board believes it would be impractical to organise the assessment centre phase of a single competition in all EU official languages.Firstly, such an approach would have very serious resource implications, rendering it impossible for the EU institutions to meet their recruitment needs within the current budgetary framework. It would also not be reasonable value for money for the European taxpayer.Secondly, conducting the assessment centre in all official languages would require a substantial number of interpreters to work on EPSO competitions and the use of appropriate premises with interpreting booths.Thirdly, a much higher number of selection board members would be needed to cover the different languages used by candidates.’
10According to point 2 of Annex II to the contested notice, which is entitled ‘Criteria for selecting languages for each selection procedure’:‘If candidates are required to choose from a limited number of official EU languages, the EPSO Management Board must determine on a case-by-case basis the languages to be used for individual open competitions, taking into account the following:(i) any specific internal rules on the use of languages within the institution(s) or bodies concerned;(ii) specific requirements related to the nature of the duties and the particular needs of the institution(s) concerned;(iii) the languages most frequently used within the institution(s) concerned, determined on the basis of:– the declared and proven language skills at level B2 or higher of the [CEFR] for Languages of permanent EU officials in active employment;– the most frequent target languages into which documents intended for internal use within the EU institutions are translated;– the most frequent source languages from which documents produced internally by the EU institutions and intended for external use are translated;(iv) the languages used for administrative communication within the institution(s) concerned.’
11Lastly, point 3 of Annex II to the contested notice, entitled ‘Languages of communication’, states:‘This section describes the general rules concerning the use of languages for communication between EPSO and prospective candidates. Other, specific requirements may be set out in each notice of competition.EPSO takes due account of candidates’ right as EU citizens to communicate in their mother tongue. It also recognises that candidates who have validated their application are prospective members of the EU civil service who benefit from the rights and obligations conferred on them by the Staff Regulations. The EU institutions therefore believe that EPSO should, wherever possible, communicate with candidates and provide candidates with information concerning their applications in all EU official languages. To achieve this, stable elements on the EPSO website, competition notices and the general rules governing open competitions will be published in all official languages.The languages to be used when filling in the online application forms are specified in each notice of competition. Instructions on filling in the application form must be provided in all official languages. These provisions will apply during the transition period required to put in place an initial online application procedure in all official languages.In order to communicate quickly and efficiently, once a candidate’s initial application has been validated, mass communication from EPSO to large candidate populations will be in a limited number of official EU languages. This will be either the candidate’s first or second language as set out in the relevant notice of competition.Candidates may contact EPSO in any official EU language but, in order for EPSO to handle their query more efficiently, candidates are encouraged to choose from among a limited number of languages for which EPSO staff is able to provide immediate linguistic coverage without the need to resort to translation.Certain tests may also be held in a limited number of official EU languages in order to ensure that candidates have the language ability needed to participate in the assessment phase of open competitions. The languages for the various tests will be specified in each notice of competition.The EU institutions believe that these arrangements ensure a fair and appropriate balance between the interests of the service and the principle of multilingualism and non-discrimination by language. The obligation on candidates to choose a second language that is different from their first (normally mother tongue or equivalent) ensures that they can be compared on an equal footing. …’
12In the part of the contested notice entitled ‘How will I be selected?’, it is stated, in point 1, that computer-based ‘Multiple-Choice Question’ (MCQ) tests, namely verbal reasoning, numerical reasoning and abstract reasoning tests, which constitute the first phase of the selection procedure concerned, are to be organised in the language chosen by each candidate as their first competition language.
13Furthermore, according to point 3 of that part, after the ‘selection based on qualifications’, which is the second phase of the competition to which the contested notice relates, the candidates who scored the highest total marks will be invited to attend an assessment centre to take tests in the language they chose as their second competition language. This is the final phase of the competition, and involves several tests to assess the candidates’ various competencies.
II.Procedure and forms of order sought
14By application lodged at the General Court Registry on 5 August 2016, the Italian Republic brought the present action.
15On 15 September 2016, the General Court gave judgment in Italy v Commission (T‑353/14 and T‑17/15, EU:T:2016:495). By that judgment, the General Court annulled the notice of open competition EPSO/AD/276/14 to constitute a reserve list of administrators (OJ 2014 C 74 A, p. 4), and the notice of open competition EPSO/AD/294/14 to constitute a reserve list of administrators in the field of data protection (OJ 2014 C 391 A, p. 1), on the ground that limiting, first, the choice of second competition language and, secondly, the choice of languages for communication between EPSO and the candidates to English, French and German constituted unjustified discrimination on grounds of language.
16On 19 October 2016, the Commission lodged its defence.
17By document lodged at the General Court Registry on 8 November 2016, the Kingdom of Spain applied for leave to intervene in support of the form of order sought by the Italian Republic. By decision of 9 December 2016, the President of the Fifth Chamber of the General Court granted the Kingdom of Spain leave to intervene. The Kingdom of Spain lodged its statement in intervention on 15 February 2017.
18On 25 November 2016, the Commission brought an appeal against the judgment of 15 September 2016, Italy v Commission (T‑353/14 and T‑17/15, EU:T:2016:495), registered under case number C‑621/16 P.
19The reply and the rejoinder in the present case were lodged on 5 December 2016 and 20 February 2017 respectively.
20On 20 January 2017, first, the General Court requested the parties to state their position on the relevance of the case pending before the Court of Justice and registered under number C‑621/16 P as regards the present case, and on the possible staying of the proceedings in the present case, under Article 69 of the Rules of Procedure of the General Court, pending delivery of the judgment of the Court of Justice in the abovementioned case. Secondly, the General Court asked the parties to submit their observations on a possible joinder of the present case and Cases T‑401/16, Spain v Commission, and T‑443/16, Italy v Commission, for the purposes of the oral part of the procedure and of the decision closing the proceedings, under Article 68 of the Rules of Procedure. The parties complied with those requests within the prescribed period.
21By decision of the President of the Fifth Chamber of the General Court of 21 February 2017, the proceedings in the present case were stayed pending delivery of the judgment of the General Court in Case C‑621/16 P.
22On 26 March 2019, the Court of Justice gave judgments in Spain v Parliament (C‑377/16, EU:C:2019:249) and Commission v Italy (C‑621/16 P, EU:C:2019:251). By the first of those judgments, the Court annulled the Call for Expressions of Interest Contract Staff – Function Group I – Drivers (F/M) – EP/CAST/S/16/2016, published in the Official Journal of the European Union of 14 April 2016 (OJ 2016 C 131 A, p. 1), and the database established pursuant to that call for expressions of interest on the ground, inter alia, that the European Parliament had not established that the limitation of the choice of, first, the second language of the selection procedure in question and, secondly, the language of communication between the Parliament and the candidates to English, French and German was objectively and reasonably justified in the light of a legitimate objective of general interest in the framework of staff policy. By the second judgment, the Court of Justice dismissed the Commission’s appeal against the judgment of 15 September 2016, Italy v Commission (T‑353/14 and T‑17/15, EU:T:2016:495). Following the delivery of that judgment, the proceedings resumed in the present case.
23On 3 April 2019, the parties were requested to submit to the General Court their observations on the conclusions to be drawn, in the present case, from the judgments of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), and of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251). The parties complied with that request within the prescribed period.
24As a result of the changes to the composition of the Chambers of the General Court, in accordance with Article 27(5), the Judge-Rapporteur was attached to the Ninth Chamber, to which the present case was, consequently, assigned.
25On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, first, requested the parties to lodge certain documents, which they did within the prescribed time limit, and secondly, put written questions to them to be answered at the hearing.
26By decision of the President of the Ninth Chamber of the General Court of 6 November 2019, the present case and Case T‑443/16, Italy v Commission, were joined for the purposes of the oral part of the procedure, in accordance with Article 68(1) and (2) of the Rules of Procedure.
27The parties presented oral argument and answered the written and oral questions put by the General Court at the hearing on 5 December 2019.
28By order of 27 January 2020, the President of the Ninth Chamber of the General Court reopened the oral phase of the procedure in the present case and in Case T‑443/16, Italy v Commission, pursuant to Article 113(2)(a) of the Rules of Procedure.
29By decision of the President of the Ninth Chamber of the General Court of 11 February 2020, after hearing the parties, the present case and Case T‑443/16, Italy v Commission, were disjoined, in accordance with Article 68(3) of the Rules of Procedure.
30By decision of 8 March 2020, the President of the Ninth Chamber of the General Court closed the oral part of the procedure in the present case.
31The Italian Republic claims that the General Court should:– annul the contested notice;– order the Commission to pay the costs.
32The Commission contends that the General Court should:– dismiss the action as unfounded;– order the Italian Republic to pay the costs.
33The Kingdom of Spain contends that the General Court should:– annul the contested notice;– order the Commission to pay the costs.
III.Law
34In support of its action, the Italian Republic relies on seven pleas in law, alleging, first, infringement of Articles 263, 264 and 266 TFEU, secondly, infringement of Article 342 TFEU and of Articles 1 and 6 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59) as amended (‘Regulation No 1’), thirdly, infringement of Article 6(3) TEU, Article 18 TFEU, Article 22 of the Charter of Fundamental Rights of the European Union (‘the Charter), Articles 1 and 6 of Regulation No 1, Article 1d(1) and (6), the second paragraph of Article 27 and Article 28(f) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and Article 1(2) and (3) of Annex III to the Staff Regulations, fourthly, infringement of Article 6(3) TEU and breach of the principle of the protection of legitimate expectations, fifthly, a misuse of powers and infringement of the ‘substantive rules concerning the nature and purpose of competition notices’, in particular Article 1d(1) and (6), the second paragraph of Article 27, Article 28(f), Article 34(3) and Article 45(1) of the Staff Regulations and of the principle of proportionality, sixthly, infringement of Article 18 and the fourth paragraph of Article 24 TFEU, Article 22 of the Charter, Article 2 of Regulation No 1 and Article 1d(1) and (6) of the Staff Regulations, and seventhly, infringement of the second paragraph of Article 296 TFEU, Articles 1 and 6 of Regulation No 1, Article 1d(1) and (6) and Article 28(f) of the Staff Regulations, Article 1(1)(f) of Annex III to the Staff Regulations, breach of the principle of proportionality, and ‘misrepresentation of the facts’.
35By those pleas, the Italian Republic, in essence, challenges the lawfulness of two aspects of the language regime of the competition to which the contested notice relates. It thus challenges, first, the rules in the contested notice which limit the choice of the second language of that competition to English, French and German and, secondly, the rules in that notice relating to the languages which may be used for communication between the candidates in that competition and EPSO.
36It must be observed at the outset that, in so far as, according to the contested notice, certain tests take place in the language chosen by the candidates as the second language of the competition in question, the inevitable consequence of the possible unlawfulness of the limitation of the choice of that second language is that the organisation of all the tests in the competition is also unlawful.
37Accordingly, it is necessary to examine in turn, in the light of the pleas relied on and the arguments put forward by the parties, the lawfulness of those two aspects of the contested notice.
A.The lawfulness of limiting the candidates’ choice of second language in the competition to which the contested notice relates to English, French and German
38The aspect of the contested notice which relates to the limitation of the candidates’ choice of second language in the competition at issue to English, French and German is, in essence, the subject matter of the third and seventh pleas raised by the Italian Republic.
39The third plea alleges that the limitation of the choice of second language in the competition at issue infringes Article 6(3) TEU, Article 18 TFEU, Article 22 of the Charter, Articles 1 and 6 of Regulation No 1, Article 1d(1) and (6), the second paragraph of Article 27 and Article 28(f) of the Staff Regulations and Article 1(2) and (3) of Annex III to the Staff Regulations. In the context of that plea, the Italian Republic considers, inter alia, that such a limitation constitutes discrimination on grounds of language and that the reasons given in that regard in the contested notice do not establish the existence of actual needs specifically justifying it.
40The seventh plea alleges an infringement of the second paragraph of Article 296 TFEU, Articles 1 and 6 of Regulation No 1, Article 1d(1) and (6) and Article 28(f) of the Staff Regulations, Article 1(1)(f) of Annex III to the Staff Regulations and breach of the principle of proportionality, and also alleges ‘misrepresentation of the facts’. In the context of that plea, the Italian Republic claims, in particular, that the statement of reasons in the contested notice is inadequate, arguing that only reasons relating to the specific requirements of the service could justify discrimination based on language.
41The Kingdom of Spain supports the arguments put forward by the Italian Republic.
42It follows from what is stated above in paragraphs 39 and 40 that, by the abovementioned pleas, which must be examined together, the Italian Republic alleges, in essence, a breach of the duty to state reasons and, in the light of the various provisions on which it relies, disputes the merits of the reasons given in the contested notice to justify limiting the candidates’ choice of second language in the competition at issue to English, French and German.
1.The statement of reasons in the contested notice
43As regards, first of all, the lack of any – or any adequate – statement of reasons in the contested notice, alleged in the context of the seventh plea, the Commission disputes the arguments put forward by the Italian Republic. More specifically, it contends that the limitation of the choice of second language in the competition at issue to English, French and German was properly justified in Annex II to that notice, and confirmed by the facts set out in the annexes to the defence. It notes, in that regard, that, according to the case-law, since the contested notice is a measure of general application, the statement of reasons may be limited to indicating the ‘general situation’ which led to the adoption of the measure in question, on the one hand, and ‘the general objectives’ which it is intended to achieve, on the other.
44In that regard, it must be borne in mind that, according to settled case-law, the obligation to state reasons in decisions is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning in a measure consists in a formal statement of the grounds on which that measure is based. If those grounds contain errors, the latter will affect the substantive legality of the measure in question, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 79 (not published) and the case-law cited, and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 49 and the case-law cited).
45In the present case, as is apparent from the considerations set out in the part of the contested notice entitled ‘Am I eligible to apply?’ and from Annex II to that notice, as reproduced in paragraphs 6 to 11 above, the notice does contain a statement of reasons for limiting the choice of second language in the competition at issue. More specifically, the notice states that that limitation was determined using the criteria set out in point 2 of Annex II to that notice (see paragraph 10 above) and that the decision to limit the choice of languages was made on the basis of three considerations, namely, first, the need for new recruits to be immediately operational, secondly, the nature of the selection procedure and, thirdly, budgetary and operational constraints. Those grounds are stated in the introductory part of that annex (see paragraph 8 above) and described in more detail in point 1(i) to (iii) of the annex (see paragraph 9 above). Consequently, it cannot be claimed that the author of that notice, EPSO, infringed the obligation to state reasons. The question whether that statement of reasons is well founded is separate and will be examined below.
2.The merits of the reasons given in the contested notice to justify limiting the candidates’ choice of second language in the competition at issue to English, French and German
(a)The existence of discrimination
46The Italian Republic argues that limiting the choice of the second language in a competition to a restricted number of official languages is contrary to the principle of multilingualism, protected by Article 22 of the Charter, which, conversely, provides for candidates to be able to choose any official language for that purpose. According to the Italian Republic, although, admittedly, it follows from certain provisions of the Staff Regulations, in particular from Article 1(1)(f) of Annex III thereto, that it is possible to limit the choice of that second language, such restrictions can never be the rule for all competitions.
47The Commission considers, inter alia, that, in so far as the limitation of the choice of languages stipulated in the contested notice relates only to the second language to be chosen by the candidates in the competition at issue in order to participate, in particular, in the assessment centre tests, and not to their mother tongue or first language, which can be used for all the computer-based MCQ tests, that limitation does not give rise to discrimination based on language.
48In that regard, Article 1 of Regulation No 1 provides:‘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.’
49It is also noteworthy that, as observed in paragraph 67 of the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), although Article 1 of Regulation No 1 expressly sets out which languages are the working languages of the EU institutions, Article 6 of that regulation provides that the institutions may stipulate in their Rules of Procedure which of the languages set out in that regulation are to be used in specific cases. In the same paragraph, however, the Court of Justice held that the institutions concerned by the competition notice at issue in that case had not stipulated in their Rules of Procedure, on the basis of Article 6 of Regulation No 1, which of the languages were to be used in specific cases.
50In that regard, it must be held at the outset that, it cannot be established on the basis of the documents in the present case that, by the contested notice, the institutions concerned had, up to the time of publication of that notice, adopted provisions in their Rules of Procedure to establish which of the languages set out in Regulation No 1 were to be used in specific cases, in accordance with Article 6 thereof. To the contrary, according to the Commission ‘no institution has ever adopted such provisions’.
51Moreover, Article 1d(1) of the Staff Regulations provides that, in the application of those Staff Regulations, any discrimination, including discrimination based on language, is prohibited. In accordance with the first sentence of Article 1d(6) of the Staff Regulations, ‘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’.
52Furthermore, Article 28(f) of the Staff Regulations provides that an official may be appointed only on condition that he produce evidence of a thorough knowledge of one of the languages of the European Union and of a satisfactory knowledge of another language of the European Union. While that provision lays down that the satisfactory knowledge of another language is required ‘to the extent necessary for the performance of [the] duties’ which the candidate is required to carry out, it does not state the criteria which may be taken into consideration in order to limit the choice of that language among the official languages mentioned in Article 1 of Regulation No 1 (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 85 (not published) and the case-law cited, and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 55 and the case-law cited).
53Moreover, no such criteria are laid down in Article 27 of the Staff Regulations, which provides in its first paragraph, without referring to knowledge of languages, that ‘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’ and that ‘no posts shall be reserved for nationals of any specific Member State.’ The same applies to the second paragraph of that article, which merely states that ‘the principle of the equality of Union’s citizens shall allow each institution to adopt appropriate measures following the observation of a significant imbalance between nationalities among officials which is not justified by objective criteria’, specifying, in particular, that ‘those appropriate measures must be justified and shall never result in recruitment criteria other than those based on merit’.
54Lastly, according to Article 1(1)(f) of Annex III to the Staff Regulations, the competition notice may where applicable lay down the knowledge of languages required in view of the special nature of the posts to be filled. However, no general authorisation to limit the choice of second language in a competition to a restricted number of official languages among those mentioned in Article 1 of Regulation No 1 can be derived from that provision (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 86 (not published) and the case-law cited, and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 56 and the case-law cited).
55It is clear that such a limitation favours certain prospective 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 servants of the European Union, whereas the others who do not have such knowledge are excluded (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 91 (not published) and the case-law cited, and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 57 and the case-law cited).
56The above conclusion cannot be invalidated by the Commission’s arguments.
57In the first place, the argument that limiting the choice of second language in the competition to which the contested notice relates does not constitute discrimination based on language, ‘since the limitation on the language used in the competition does not concern the candidates’ mother tongue or first language, but only the second language which they must choose’, must be dismissed as ineffective. Indeed, the scope of the prohibition of discrimination based on language, set out in Article 1d(1) of the Staff Regulations, is not limited to the use of the mother tongue of persons falling within the scope of that provision or to the use of the stated first language for a competition to recruit officials or servants of the European Union.
58In the second place, the Commission’s argument concerning the fact that candidates may use their mother tongue for the computer-based MCQ tests, and must therefore use a different language for the assessment centre tests, must be dismissed. None of the stipulations in the contested notice suggests that the candidates are necessarily invited take the computer-based MCQ tests in their main language (which would generally be their mother tongue), let alone that they are required to do so. Accordingly, there is nothing to prevent a candidate whose mother tongue is English, French or German and who also has a thorough knowledge of another of those three languages to state that the latter is his first language for the purposes of the competition and, therefore, to take the other tests stipulated in the contested notice in his main language. It is therefore clear that such an option would not be open to a candidate whose main language is not one of the three abovementioned languages. The example of the verbal reasoning tests given by the Commission cannot call that assessment into question, because it cannot be ruled out, solely on the basis of that document, that a candidate’s having a thorough knowledge, or even a perfect command, of a language other than his main language could enable him to pass that sort of test.
59In addition, according to paragraph 94 of the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), the objective of securing for the institutions the services of officials of the highest standard of ability, efficiency and integrity can best be achieved when the candidates are allowed to sit the selection tests in a competition in their mother tongue or in the second language of which they think they have the best command. However, contrary to the Commission’s submissions in its pleadings, it cannot be inferred from that judgment that any limitation on the candidates’ choice of second language is justified on condition that candidates are able to choose, from among the languages proposed in the contested notice, the one of which they have the best command after their mother tongue. It is possible that the second language of which candidates ‘think they have the best command’, within the meaning of paragraph 94 of the abovementioned judgment, is a language other than English, French or German (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 95 (not published) and the case-law cited, and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 62 and the case-law cited).
60Nevertheless, according to the case-law, it is apparent from all the abovementioned provisions that the interests of the service may constitute a legitimate objective that can be taken into consideration. In particular, while it is true that Article 1d(1) of the Staff Regulations prohibits all discrimination based on language, the first sentence of Article 1d(6) provides, however, that limitations to that prohibition are possible where they are ‘justified on objective and reasonable grounds’ and correspond to ‘legitimate objectives in the general interest in the framework of staff policy’ (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 89).
61Thus, the broad discretion enjoyed by the EU institutions with regard to the organisation of their departments, like EPSO, where, as in the present case, the latter exercises powers conferred on it by those institutions, is governed in mandatory terms by Article 1d of the Staff Regulations, so that differences in treatment based on language resulting from the limitation of the language regime of a competition to a restricted number of official languages can be accepted only if such a limitation is objectively justified and proportionate to the actual needs of the service (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 90 and the case-law cited).
62In the light of all the foregoing, since the limitation of the choice of second language in the competition to which the contested notice relates constitutes discrimination on grounds of language, which is in principle prohibited under Article 1d(1) of the Staff Regulations (see paragraph 55 above), it is necessary to examine whether, by limiting that choice to English, French and German, thereby giving rise to unjustified discrimination, EPSO infringed Article 1d of the Staff Regulations.
(b)The existence of a justification for the discrimination at issue
63The Italian Republic considers, first of all, that the candidates’ language skills are not one of the competencies referred to in the first paragraph of Article 27 of the Staff Regulations, so, in order to be effective and non-discriminatory, the assessment of those competencies in competition tests must not be decisively influenced by the candidates’ language skills. Accordingly, the particular needs specifically justifying a limitation of the choice of second language in a competition must be set out, and sufficient reasons stated therefor, meaning that it is necessary to establish a link between the second language and the specific duty that is to be performed by the successful candidates in the competition in question.
64In the present case, the fact that the successful candidates in the competition to which the contested notice relates will be required to perform a number of different duties means that the recruits should have a variety of language skills. According to the Italian Republic, because of the vast area covered by audits on the management of the structural funds by the Member States, it is clear that performing duties of that type requires the widest possible knowledge of EU languages.
65However, the reasons given in the contested notice to justify the limitation at issue are not linked to the actual tasks to be accomplished or to the specific needs of the service.
66Thus, in the first place, the Italian Republic argues that the need for new recruits to be immediately operational, which is one of the reasons given, is not a requirement that justifies linguistic discrimination of such severity. Indeed, such an objective cannot be relied on in general or theoretical terms, but must relate to the specific duties to be carried out. Therefore, restrictions to the language regime of the competition to which the contested notice relates would be permissible only if it were shown that, without such restrictions, the newly recruited officials would be completely unable to work.
67As regards the reference in the contested notice to internal communication requirements, that notice in no way demonstrates how that communication is essential to the performance of the specific tasks which would be allocated to the newly recruited successful candidates, or why such communication has to be in English, French or German. According to the Italian Republic, such requirements cannot be presented as a sort of predetermined universal value capable of justifying – always and under any circumstances – a restriction of fundamental rights. Furthermore, there is no evidence that the three languages in question are the most widely used languages for internal communication in the EU institutions.
68In the second place, as regards the reason relating to the nature of the selection procedure, the Italian Republic argues that such a consideration does not, in itself, justify linguistic discrimination on that scale. In addition, the contested notice does not state the reasons why only the use of English, French and German is capable of maximising the effectiveness of that procedure.
69Thirdly and lastly, as regards the reason relating to budgetary and operational constraints, the Italian Republic considers that requirements of a financial nature can never, in themselves, justify discrimination which affects a fundamental right. In any event, Annex II to the contested notice does not indicate what the costs of a different system would be, or why only a system based on the three language options in this case ‐ and not, for example, three other languages ‐ is compatible with budgetary requirements.
70For its part, the Commission states that the broad discretion enjoyed by the EU institutions with regard to staff policy allows them to define the interests of the service and the competencies required of persons recruited under the first paragraph of Article 27 of the Staff Regulations, but also to determine the objectives capable of justifying a linguistic limitation under the first sentence of Article 1d(6) of the Staff Regulations.
71In the present case, according to the contested notice, the interests of the service consist of the need to ensure the effective functioning of the institutions concerned by that notice, namely the Commission and the European Court of Auditors, by recruiting staff who are immediately operational and who, thanks to their knowledge of one of the vehicular languages, can easily integrate themselves into a new and international working environment.
72According to the Commission, therefore, the limitation of the choice of second language in the competition at issue to English, French and German is based on objective evidence, namely the fact that those three languages are used for communication between the two institutions mentioned in paragraph 71 above. With its defence, the Commission provides information in support of that assertion, consisting of, first, various provisions adopted by the Commission and the Court of Auditors and, secondly, statistical data showing how widespread the use of those three languages is among the staff performing auditing duties.
73Moreover, according to the Commission, it cannot be accepted that the purpose of the competition to which the contested notice relates is solely to verify the candidates’ competencies, and that the objective of assessing their ability to express themselves in a language other than their mother tongue is entirely secondary. To the contrary, it is essential to guarantee the conditions for effective internal communication by ensuring that every official has sufficient knowledge of one of the three languages serving as the vehicular languages of the institutions concerned. Accordingly, a candidate who is unable to communicate in one of those three languages has no prospect of becoming an official ‘of the highest standard of ability’ within the meaning of Article 27 of the Staff Regulations.
74In addition, the Commission argues that the approach suggested by the Italian Republic, whereby candidates would be free to select the second competition language from all the official languages, would entail considerable economic cost. In a work environment where English, French and German are clearly prevalent, that cost would be manifestly unjustified.
75Such an approach also fails to take into account the specific nature of the assessment centre tests. According to the Commission, since it is unlikely that the members of the selection board will know all the official languages of the European Union, candidates would have to communicate with the assistance of interpreters, which would appear to be totally absurd in the light of the objective of recruiting successful candidates who are immediately operational.
76Furthermore, according to the Commission, the three languages at issue are the most widely studied languages in the Member States and the best known languages in Europe, as well as being the languages which EU citizens think are the most useful to study. That follows, inter alia, from the information which the Commission has submitted with its defence.
77In the reply, the Italian Republic disputes, in particular the relevance of the information submitted by the Commission with its defence.
78In the rejoinder, the Commission reiterates its arguments and states, inter alia, that the information it has submitted shows that those arguments are well founded.
79For its part, the Kingdom of Spain states, in essence, that the purpose of the competition at issue is to recruit administrators in the field of audit who will carry out their duties, across all areas of activity of the European Union, in the Member States and in third countries. It thus considers that the successful candidates should have the broadest possible knowledge of languages. The Kingdom of Spain regards the information provided by the Commission as incomplete, in so far as it does not reflect the situation of all institutions or the situation of the institutions concerned by the contested notice.
(1)The reasons set out in the contested notice
80It must be recalled at the outset that, in the context of a selection procedure, the institutions have a wide discretion to assess the interests of the service and the qualifications and merits of the candidates to be taken into consideration. Accordingly, it cannot be ruled out that the interests of the service may require that the persons recruited have specific knowledge of languages. Consequently, the specific nature of the tasks to be performed may justify recruitment based, inter alia, on a thorough knowledge of a specific language (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraphs 67 and 68 and the case-law cited).
81However, 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 limitation is indeed appropriate for the purpose of meeting the actual needs relating to the duties that the persons recruited will be required to carry out. Furthermore, any requirement relating to specific knowledge of languages must be proportionate to those interests and 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 (see judgments of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 69 and the case-law cited, and of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 93 and the case-law cited).
82In that context, it is incumbent on the EU judicature to carry out an actual assessment of the rules establishing the language regime of competitions such as that to which the contested notice relates, in so far as only such an assessment is capable of establishing the knowledge of languages which may objectively be required, in the interests of the service, by the institutions for specific duties and, consequently, whether a limitation of the choice of the languages which may be used in order to participate in that competition is objectively justified and proportionate to the actual needs of the service (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 94).
83More specifically, the EU judicature 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 (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 104 and the case-law cited).
84As is apparent from paragraph 8 above, the introductory part of Annex II to the contested notice states that the purpose of the competition at issue is to draw up reserve lists of administrators in the field of audit for recruitment within the Commission, as well as a ‘limited number’ for recruitment within the Court of Auditors. It is stated in Annex II that the choice of second language in the competition at issue has been limited to English, French and German in the light of the criteria set out in point 2 of that annex (see paragraph 10 above) and on the basis of three reasons, namely, first, the need for the new recruits to be immediately operational, secondly, the nature of the selection procedure and, thirdly, budgetary and operational constraints (see paragraph 45 above).
85As regards, first of all, the reason relating to budgetary and operational constraints, it must be observed that, as it is formulated in point 1(iii) of Annex II to the contested notice, that reason can be considered, at most, as a theoretical justification for limiting the number of languages which may be chosen as a second language in the competition at issue. It does not make it possible to determine what the precise number of languages should be, nor explain why certain languages can be used and others cannot.
86Similarly, given that the terms used in point 1 of Annex II to the contested notice are general, the reason relating to budgetary and operational constraints could be applicable not only to the competition procedure at issue, but also to any other competition procedure organised by EPSO. Accordingly, the reason in question does not give any indication of the actual budgetary and operational constraints faced by EPSO or the other departments concerned by the contested notice which might justify, in this case specifically, limiting the choice of second language in the competition at issue to a restricted number of languages. In addition, the Commission has not given any specific information on the advantages, from the point of view of budgetary and operational resources, of using the language regime stipulated in the contested notice, or on the consequences that using a different system would have.
87In any event, it must be recalled that, according to settled case-law, budgetary considerations cannot justify discrimination (see judgment of 1 March 2012, O’Brien, C‑393/10, EU:C:2012:110, paragraph 66 and the case-law cited). Moreover, it does not follow from the case-law as it now stands that the objective of reducing costs in the institutions may constitute, as such, an objective of general interest recognised by the European Union.
88Therefore, the reason relating to budgetary and operational constraints, as set out in point 1(iii) of Annex II to the contested notice, cannot, in itself, justify the discrimination at issue.
89Similar considerations apply as regards the reason set out in point 1(ii) of Annex II to the contested notice concerning the nature of the selection procedure and, more specifically, the specific nature of the assessment centre tests. Indeed, as with the reason relating to budgetary and operational constraints, the fact that the reason concerning the nature of the selection procedure is formulated in general terms means that it could be applicable to any competition procedure and does not justify the choice of three languages in the specific context of the competition at issue. Furthermore, the Commission provides no specific evidence in that regard. In particular, the statistical data which it provides concerning the main language chosen by candidates in competitions held between 2010 and 2012 are irrelevant to the assessment of the requirements relating to the choice of second language in the competition at issue. The same applies to the data relating to the second language chosen by candidates in competitions that took place in 2005, predating the reform of EPSO’s competition procedures whereby assessment centre tests were introduced.
90As regards, moreover, the scope of that reason, it must be observed that, as is clear from point 1(ii) of Annex II to the contested notice, assessing the candidates’ various competencies in the assessment centre ‘enables the EU institutions to evaluate [their] ability to be immediately operational in an environment that closely matches the reality of the job’. Consequently, it would appear from that wording that the reason relating to the nature of the selection procedure is, in reality, linked to the need for new recruits to be immediately operational. That is not contradicted by the Commission, which considers, in its written pleadings, that the reason in question constitutes an ‘additional factor’ reflecting the institutions’ choice of a selection process consisting of simulating a real work environment and focusing on the candidates’ capacity for interaction in an international context. Similarly, it must be observed that EPSO’s plan for the implementation of the reform of competition procedures of 11 September 2008, which has been provided by the Commission, serves primarily to illustrate the fact that the objective of recruiting staff capable of being immediately operational is directly linked to that reform.
91It follows that neither the reason relating to budgetary and operational constraints, nor that relating to the nature of the selection procedure, either in themselves or taken together, are capable of justifying the limitation in the contested notice of the candidates’ choice of second language in the competition at issue, especially in so far as those reasons do not show why that choice should be limited to the three language options in this case, namely English, French and German, to the exclusion of other official languages of the European Union. However, the reason relating to the need for the new recruits to be immediately operational may be capable of justifying a limitation to those three specific languages (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 106 (not published) and the case-law cited)
92The essential nature of that reason is, moreover, confirmed by the general rules, point 1.3 of which states that ‘the second language options for competitions have been defined in the interests of the service, which require new recruits to be immediately operational and capable of communicating effectively in their daily work’.
93As regards the substance of the reason relating to the need for the new recruits to be immediately operational, it follows from the introductory part and from point 1(i) of Annex II to the contested notice that, in order to be considered immediately operational, the candidates participating in the competition at issue must possess an ‘adequate knowledge of a combination of languages that will enable them to carry out their duties in an effective manner and in particular … to communicate effectively in their daily work with their colleagues and managers’ (see paragraph 9 above). Accordingly, ‘given the fact that English, French and German are the languages most frequently spoken, translated and used for administrative communication by staff in the EU institutions, candidates must offer at least one of them among their two compulsory languages’. Furthermore ‘a good command of English, French or German is deemed to be essential for analysing the situation of the auditees, making presentations, holding discussions and writing reports, so as to ensure effective cooperation and information exchange with the services being audited and the appropriate authorities’ (see paragraph 8 above).
94In that regard, it must be observed that, in the light of the case-law referred to in paragraphs 80 and 81 above, although the considerations set out in paragraph 93 above indicate that the service does have an interest in new recruits being able to carry out their tasks and to communicate effectively as soon as they take up their duties, they are not in themselves sufficient to establish that the duties in question, namely the duties of administrator in the field of audit in the institutions concerned by the contested notice, in practice require knowledge of English, French or German, to the exclusion of the other official languages of the European Union (see, to that effect, judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 72).
95That finding is not called into question by the description, as set out in the contested notice, of the duties which the successful candidates recruited will be required to perform.
96Indeed, according to Annex I to the contested notice, entitled ‘Duties’, those successful candidates will be required, inter alia, to ‘develop a good understanding and knowledge of the business processes of auditees’, to ‘undertake performance, compliance and value for money audits in a broad range of EU policy areas and business processes’, to ‘validate audit findings with the auditee’, to ‘communicate audit findings, risks and recommendations through clear and concise draft/final reports’ or to ‘provide advisory/consultancy services made at the request of management’. Similarly, it follows from the introductory part of Annex II to the contested notice that the duties concerned include ‘analysing the situation of the auditees’, ‘making presentations, holding discussions and writing reports’ and ‘cooperation and information exchange with the services being audited and the appropriate authorities’. Moreover, in the part entitled ‘What tasks can I expect to perform?’, the contested notice states that ‘auditors can be called upon to carry out audits in various EU and third countries during their career’.
97As the Commission stated at the hearing, in response to a measure of organisation of procedure, ‘auditee’ must be understood to mean bodies such as the EU agencies, the European External Action Service (EEAS), the European Data Protection Supervisor (EDPS) and other institutions, whereas ‘services being audited’ must be understood to mean the services of the various Directorates-General of the Commission. The term ‘appropriate authority’, on the other hand, refers to the budgetary authorities, namely the Council of the European Union and the Parliament.
98However, it does not appear possible to establish, based solely on the description of the duties referred to in the contested notice, how each of the three languages to which the choice of the second language in the competition at issue was limited would enable the successful candidates recruited to be immediately operational. In particular, there is nothing in that notice which shows that those three languages are actually used to carry out the tasks listed in Annex I to the notice, or for preparing presentations, holding discussions or writing reports, which are tasks referred to in the introductory part of Annex II to that notice. Similarly, it does not in any way follow from that notice that administrators performing audit duties actually use the three abovementioned languages in their dealings with the auditees or services being audited or with the appropriate authorities.
99Furthermore, the fact that the contested notice refers to multiple tasks, including not only internal audit operations, but also missions in various Member States and third countries, and ‘in a broad range of EU policy areas and business processes’, would indicate rather that, although having a command of a particular language may be essential, recruiting staff with various linguistic profiles would benefit the functioning of the service.
100It follows that, even if understood in the light of the description of the duties set out in the contested notice, the reason relating to the need for new recruits to be immediately operational cannot, in view of its vague and general wording, and given the absence of any specific evidence to support it in the contested notice, justify limiting the choice of the second language in the competition at issue to English, French and German only.
101In those circumstances, it is necessary to examine whether the information provided by the Commission in relation to that reason proves that, in the light of the functional specificities of the posts to be filled, the limitation at issue was objectively and reasonably justified by the need for the successful candidates in the competition at issue to be immediately operational.
(2)The information provided by the Commission
(i)Preliminary observation
102The information provided by the Commission relates, in part, to its own functioning, and in part to the functioning of the Court of Auditors. On the basis of that information, it seeks to establish that the predominant languages, both in the Commission services and in the services of the Court of Auditors, are English, French and German, and therefore, in order to be immediately operational, new recruits are required to have a satisfactory knowledge of at least one of those three languages. Moreover, it provides some data showing that the three languages in question are the most widely studied foreign languages in the Member States and the most well-known languages in Europe.
103Since the Italian Republic considers that the selection procedure at issue concerns all the institutions, it must be pointed out, with regard to the information relating to the Commission and the Court of Auditors, that, according to the contested notice, the ‘main’ purpose of the selection procedure at issue is to draw up reserve lists of administrators in the field of audit, from which ‘the institutions of the European Union, primarily the … Commission in Brussels and the … Court of Auditors in Luxembourg’, would recruit new members of the EU civil service (see paragraphs 1 and 8 above).
104While the terms used in the contested notice do not seem to exclude the possibility of recruitment into all the EU institutions, the fact remains that the two institutions primarily concerned by that notice are the Commission and the Court of Auditors. Moreover, in response to a measure of organisation of procedure, the Commission stated at the hearing that, although recruitment by other institutions was possible, it was nevertheless subject to prior agreement between the recruiting institution designated in the competition notice and the institution actually intending to recruit the person concerned. However, according to the information provided by the Commission, the chance of such a situation arising in this case remained negligible, with only four of the 72 successful candidates in the competition at issue having been recruited by other employers, namely three by the European Union Intellectual Property Office (EUIPO) and one by the EEAS.
105In the light of the foregoing, it is necessary to take into account the information provided by the Commission concerning its own functioning and the functioning of the Court of Auditors, and to examine whether it is relevant for the purposes of resolving the dispute in the main proceedings.
(ii)The information relating to the functioning of the Commission
–The information relating to the Commission’s internal language practices
106The Commission provides a set of documents showing that English, French and German are the ‘vehicular’ languages or working languages used by its services.
107First, it provides Memorandum SEC(2000) 2071/6 from the President of the Commission of 29 November 2000 simplifying the Commission’s decision-making process, and an extract from the minutes of the Commission’s 1502nd meeting of 29 November 2000 drawn up on 6 December 2000 under reference PV(2002) 1502, confirming the approval of that memorandum by the College of Commissioners.
108Secondly, the Commission provides its Rules of Procedure [C(2000) 3614] (OJ 2000 L 308, p. 26), in the version in force when the contested notice was published, along with the Rules giving effect to the Rules of Procedure, annexed to Commission Decision C(2010) 1200 final of 24 February 2010 amending its Rules of Procedure. Furthermore, it provides a document entitled ‘Language rules depending on adoption procedures’ which it describes as ‘rules on to the adoption of decisions by the Commission set out by [its] President’. According to the Commission, it follows from those ‘rules’ that ‘any draft decision distributed to the Commissioners for written or oral decision, or for decision by empowerment, must be drafted in English, French and German’.
109Moreover, in response to measures of organisation of procedure, the Commission also provided a number of documents relating to the implementation of the ‘rules’ contained in the document mentioned in paragraph 108 above, and Commission communication SEC(2006) 1489 final of 20 December 2006 on ‘translation in the Commission’ with an annex setting out the ‘translation rules beyond 2006’.
110The Italian Republic disputes the relevance of those documents, considering, in essence, that they concern only the functioning of the College of Commissioners and do not in any way demonstrate that English, French and German are used as vehicular languages by the Commission services. Furthermore, at the hearing, it submitted that communication SEC(2006) 1489 final must be regarded as constituting a new fact and be dismissed as out of time.
111The Commission contends that the documents mentioned in paragraphs 107 to 109 above apply to any draft act requiring its approval, which necessarily means ‘that it is [its] services … which prepare that draft’. Indeed, in so far as the President of the Commission laid down rules, based on the Rules giving effect to the Commission’s Rules of Procedure, according to which the vehicular languages, namely ‘the languages in which draft acts must be distributed to the Commissioners for approval’, are English, French and German, such rules have ‘an inevitable impact on the work of the services which are required to draft those documents in those languages’. Moreover, the Commission argued, at the hearing, that the communication mentioned in paragraph 109 above was provided in order to supplement its response to the measures of organisation of procedure addressed to it by the Court, which is why it should not be dismissed as out of time.
112In that connection, it must be observed, first of all, that, as regards Memorandum SEC(2000) 2071/6, the Commission refers to point 2.2 of that text which, according to the Commission, restricts the number of ‘working languages’ to three.
113However, the purpose of Memorandum SEC(2000) 2071/6 is, in essence, to assess the different types of procedures used by the College of Commissioners to take decisions, as provided for in the Rules of Procedure of the Commission, in the version in force when that memorandum was issued, and to propose ways of simplifying them. It is in such a context and by reference to a specific type of procedure, namely the written procedure, that point 2.2 of the memorandum in question states that ‘documents have to be circulated in the three working languages’, without, however, identifying those languages. Although that reference includes the expression ‘working languages’, it is not sufficient in itself to establish that English, French and German are the languages actually used by all the Commission services in their daily work.
114Furthermore, the scope of that reference is clarified by other sections of Memorandum SEC(2000) 2071/6.
115Accordingly, first, it follows from point 2.2 of Memorandum SEC(2000) 2071/6 that, in the context of the empowerment procedure, by which the Commission can empower one or more members to take measures on its behalf and under its responsibility, the text of the decision to be adopted is to be ‘presented in a single working language and/or the authentic language versions’.
116Secondly, point 5.2 of Memorandum SEC(2000) 2071/6 entitled ‘Simplifying the language arrangements’, highlights the role of the Commission’s Directorate-General (DG) for Translation, which is ‘fully involved in the process’ of decision-making. It is stated therein that ‘one of the major causes of delay in initiating or finalising written procedures and empowerment procedures is obtaining the translations, including the texts revised by the lawyer linguists’, which is why it is essential that any documents to be translated are transmitted to DG Translation promptly.
117In the light of the foregoing, Memorandum SEC(2000) 2071/6 does not allow any useful conclusions to be drawn on the actual use of English, French and German in the daily work of the Commission services, or a fortiori in the performance of the duties referred to in the contested notice.
118That finding cannot be called into question by the other texts in the light of which the Commission suggests that Memorandum SEC(2000) 2071/6 should be analysed, namely its Rules of Procedure, the Rules giving effect to the Rules of Procedure and the document entitled ‘Language rules depending on adoption procedures’ (see paragraph 108 above).
119As regards the Rules of Procedure of the Commission, it must be observed from the outset that they do not contain any provisions on the languages to be used by the bodies referred to in Chapter I thereof ‐ namely the Members of the Commission acting collectively, the President and the Secretary-General ‐ or the working languages to be used by the Commission services referred to in Chapter II. Article 17 of the Rules of Procedure, concerning the authentication of instruments adopted by the Commission, merely states that instruments are to be adopted ‘in the authentic language or languages’, namely, according to paragraph 5 of that article, ‘the official languages of the European Union … in the case of instruments of general application, and the language or languages of those to whom they are addressed, in other cases’.
120According to the information provided by the Commission at the hearing, account must nevertheless be taken of Articles 6 and 12 to 14 of its Rules of Procedure and of the rules giving effect to those articles. Moreover, according to the Commission, it is on the basis of those implementing rules that the ‘Language rules depending on adoption procedures’ were established.
121Article 6(1) of the Rules of Procedure of the Commission provides that ‘the President shall adopt the agenda of each Commission meeting’, and Article 6(4) provides that ‘the agenda and the necessary documents shall be circulated to the Members of the Commission as prescribed in accordance with the implementing rules’.
122Articles 12 to 14 of the Commission’s Rules of Procedure relate to decision-making procedures other than the oral decision-making procedure covered by Article 8, and govern the written procedure, the empowerment procedure and the delegation procedure, respectively. As regards, in particular, the written procedure, Article 12(2) of the Rules of Procedure provides that ‘the draft text shall be circulated in writing to all Members of the Commission as laid down by it in accordance with the implementing rules’.
123All the provisions of the Commission’s Rules of Procedure mentioned in paragraph 122 above are set out in the rules for implementing the Rules of Procedure of 24 February 2010.
124More specifically, the rules for implementing Article 6 of the Commission’s Rules of Procedure include a paragraph 6‑4, entitled ‘Lodging and circulation of documents and language rules’, which provides as follows:‘6‑4.3 Documents to be discussed at a Commission meeting shall be distributed to Members of the Commission:– in the languages stipulated by the President, taking account of Members’ minimum requirements,– and in the language or languages required in particular for the purposes of the instrument’s entry into force and its notification to those to whom it is addressed.…6‑4.5 Official transmission to other Community institutions and/or publication in the Official Journal of the European Union requires the text to be available in all official languages.6‑4.6 The President shall take a decision in cases where the conditions set out in … the first indent of [paragraph] 6‑4.3 have not been met. Depending on the circumstances he may decide to hold the matter over to a subsequent meeting.The matter must be held over if the language or languages required in particular for the purposes of the instrument’s entry into force and its notification to those to whom it is addressed are not available when the instrument is adopted.’
125Moreover, the rules implementing Article 12 of the Commission’s Rules of Procedure include a paragraph 12‑13, entitled ‘Language rules for written procedures’, under which:‘12‑13.1 Documents for adoption by written procedure shall be distributed to Members of the Commission:– in the languages stipulated by the President, taking account of Members’ minimum requirements; the President shall take a decision in exceptional circumstances (such as in the event of a major crisis, natural catastrophe or some other special circumstance) or in cases where these language versions are not available for reasons which can be duly substantiated,– and in the language or languages required in particular for the purposes of the instrument’s entry into force and its notification to those to whom it is addressed.…12‑13.3 Official transmission to other Community institutions and/or publication in the [Official Journal] requires the text to be available in all official languages.’
126Furthermore, as regards the rules giving effect to Articles 13 and 14 of the Commission’s Rules of Procedure, paragraph 13/14‑4, entitled ‘Language rules for empowerment and delegation procedures’, is worded as follows:‘13/14‑4.1 For the exercise of conferred powers, the documents must be available, as appropriate, in the following language versions:– the language(s) required for the act to enter into force;– the language(s) required for notification of the act to those to whom it is addressed;– the language(s) stipulated by the President, taking account of Members’ minimum requirements, or required for the purposes of adopting the act in other cases.…13/14‑4.3 Official transmission to other Community institutions and/or publication in the [Official Journal] requires the text to be available in all official languages.’
127Lastly, as regards the document entitled ‘Language rules depending on adoption procedures’, the Commission asserts that the purpose of that document is, essentially, to provide details of the rules implementing its Rules of Procedure set out in paragraphs 124 to 126 above. That document refers, in particular, to the use of ‘procedural languages’, a concept which, according to the arguments put forward by the Commission, must be understood to mean the languages which enable the understanding of a draft act with a view to its being adopted by the College of Commissioners or, where appropriate, by an delegated body. It follows from that document that the ‘procedural languages’ are English, French and German, and that the use of those languages varies depending on the type of adoption procedure.
128Accordingly, as regards oral and written procedures, the document entitled ‘Language rules depending on adoption procedures’ states that a draft text and any annexes thereto are to be distributed to the Members of the Commission in the three procedural languages and, where applicable, in the language or languages required for the entry into force or notification of the act in question. It is also stated that, following the adoption of such an act, and where applicable, the other languages required for publication or transmission to other EU institutions should follow as soon as possible.
129As regards empowerment and delegation procedures, it follows from the document entitled ‘Language rules depending on adoption procedures’ that the delegated body can adopt an act on the basis of one procedural language, but that, where applicable, the language or languages required for the entry into force or notification of that act must also be available. Furthermore, as with oral and written procedures, the document in question states that the other languages required for publication or transmission to other EU institutions should follow as soon as possible.
130Moreover, the document entitled ‘Language rules depending on adoption procedures’ provides that the President of the Commission may, in certain circumstances, grant ad hoc or permanent derogations as regards the number of procedural languages to be used for launching an adoption procedure or for both launching such a procedure and adopting the act in question.
131The document entitled ‘Language rules depending on adoption procedures’ states that permanent derogations, in particular, can be granted for certain recurrent files by means of an official note either from the Secretary-General or from the President’s Cabinet. By way of example, the document in question mentions the derogations granted for decisions or communications adopted under, in particular, the written procedure in a number of fields, namely the adoption of restrictive measures on the basis of Article 29 TEU, the instrument of stability, external relations, individual State aid decisions, enforcement measures in the fields of antitrust and merger control and, lastly, the signing of framework agreements with international organisations.
132In that regard, it must be observed that, taken together, the documents referred to in paragraphs 107 and 108 above cannot be regarded as rules, stipulated in the Commission’s Rules of Procedure, for implementing the general language regime established by Regulation No 1, for the purposes of Article 6 of the latter. As stated by the Commission in its responses to the measures of organisation of procedure addressed to it by the Court in the present case, those documents merely describe the Commission’s long-standing administrative practice of using English, French and German as the languages in which documents must be available in order to be submitted to the College of Commissioners for approval.
133As regards, in particular, the nature of the document entitled ‘Language rules depending on adoption procedures’, the Commission stated that it was part of the ‘Manual of Operating Procedures’, an internal electronic handbook produced by the services of the Commission’s Secretariat-General, the purpose of which is, inter alia, to codify that administrative practice. As regards the date of adoption and of the temporal application of that handbook, the Commission merely refers to note SEC(2003) 153 from its Secretary-General for the attention of the Directors-General and Heads of Service of 11 February 2003 on the updating of that handbook and its distribution via the Commission’s intranet.
134However, even if the version submitted by the Commission in annex to its defence were the version in force on the date of publication of the contested notice, the document from the ‘Manual of Operating Procedures’ cannot be regarded as a decision of its President stipulating the languages to be used in documents presented to the College of Commissioners, for the purposes of paragraphs 6‑4.3, first indent, 12‑13.1, first indent, and 13/14‑4.1, third indent, of the rules implementing the Rules of Procedure of the Commission. Moreover, there is nothing in the file to suggest that that document was formally approved by the President of the Commission, let alone by the College of Commissioners.
135In its responses to the measures of organisation of procedure addressed to it by the Court in the present case, the Commission acknowledged in general terms that there was no internal decision stipulating the working languages of the Commission.
136Having made those preliminary observations, it must be observed that, in so far as all the documents provided by the Commission have the sole purpose of establishing the languages required in order to carry out Commission’s various decision-making procedures, they do not show that limiting the choice of second language in the competition at issue to English, French and German is justified in the light of the functional specificities of the posts referred to in the contested notice.
137More specifically, it is not apparent either from those texts or, a fortiori, from other documents in the file, that there is a necessary link between the Commission’s decision-making procedures, particularly those carried out by the College of Commissioners, and the duties that the successful candidates in the competition at issue might perform, namely audit duties such as those set out in paragraph 96 above. Even if the members of a given institution use only one or some languages in their deliberations, it cannot be presumed, without further explanation, that a newly recruited official who is not proficient in any of those languages would be incapable of immediately carrying out useful work in the institution concerned (judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraphs 121 and 122 (not published)). That is particularly so since, in the present case, the duties concerned are very specific and a priori are not closely connected with the work of the College of Commissioners.
138In addition, it is not apparent from the documents provided by the Commission that all three languages described as ‘procedural languages’ are actually used by the Commission services in their daily work. Furthermore, it follows from Memorandum SEC(2000) 2071/6 (see paragraphs 116 above) that the Translation Service of that institution is to be ‘fully’ involved in the decision-making process. That memorandum also mentions the deadline for obtaining translations, including the texts revised by the lawyer linguists, and the need for prompt transmission to the Translation Service of documents to be translated. Those references thus indicate that it is not the service responsible for the actual drafting of a document, but in fact DG Translation which produces the versions of that document in the required procedural languages in order to transmit them to the College of Commissioners, while the service responsible for drafting the document merely has the task of reviewing the translated text. It seems unlikely that any service, other than DG Translation, could require all members of its staff to provide three language versions of the documents to be submitted to the College of Commissioners for adoption.
139Lastly, given that no officials are required to have a satisfactory knowledge of all three of the languages required by the contested notice, it is equally unlikely that the task of producing a draft act in the language versions required in order for it to be transmitted to the Commissioners would be carried out simultaneously by a corresponding number of officials from the service responsible for producing that draft. Such a situation appears even more unlikely in so far as there is no guarantee that officials with a satisfactory knowledge of all three of the languages in question would be employed by each service.
140The foregoing assessment cannot be called into question by the Commission’s arguments based on communication SEC(2006) 1489 final. According to the Commission, it follows from that document, and in particular from the annex entitled ‘Translation rules beyond 2006’, that, as regards the Commission’s internal documents, only English, French and German translations are required, in addition to the authentic language version. Moreover, that communication shows that Commission services other than DG Translation are called upon to produce what are known as ‘grey’ translations using the language abilities available among their staff.
141In that regard, it must be observed that the content of communication SEC(2006) 1489 final does not invalidate the assessment set out in paragraphs 138 and 139 above, but, on the contrary, confirms it. Indeed, the ‘translation rules beyond 2006’ set out in annex to that communication mention English, French and German only as target languages into which certain categories of documents must be translated, without stating the source language at all. Moreover, for the vast majority of the categories of documents referred to in that annex, a translation into all the official languages must be provided, and instances where a translation is required into English, French and German only are, in reality, the exception.
142Secondly, as regards the argument relating to the production of ‘grey’ translations, it is not supported by any evidence of the exact proportion of grey translations in relation to the overall volume of translations produced in the Commission. Although point 2.2 of communication SEC(2006) 1489 final acknowledges that it is ‘extremely difficult to quantify for lack of reliable indicators’, point 3.1 nonetheless gives an estimate for the year 2007 according to which the translations produced by DG Translation would amount to 1700000 pages, while ‘grey’ translations would make up 100000 pages. However, since the latter figure corresponds to all Commission services other than DG Translation, it is obvious that ‘grey’ translations would represent only a very small quantity in relation to the volume produced by that DG alone. Finally, and above all, there is nothing in the file to show that the three abovementioned languages are the languages into which those ‘grey’ translations are produced.
143In those circumstances, without it being necessary to rule on the admissibility of that document, it must be held that communication SEC(2006) 1489 final is not relevant to the resolution of the present dispute.
144In any event, and regardless of whether or not there is a link between the Commission’s decision-making procedures and the specific duties referred to in the contested notice, the texts produced by the Commission do not provide evidence of the exclusive use of the three ‘procedural’ languages in the procedures to which they relate.
145First, it is clear from the document entitled ‘Language rules depending on adoption procedures’, read in the light of the rules implementing the Rules of Procedure of the Commission, that the launching of an adoption procedure requires, as a general rule, and without prejudice to the possibility of using only one language in empowerment and delegation procedures, the presentation of the draft act in the three procedural languages. The fact remains, however, that the adoption of that draft may or must, depending on the requirements arising from the nature of the act in question, make it necessary for the draft to be available in one or more language versions, or even, where the act in question is to be published in the Official Journal of the European Union or to be transmitted to other institutions, translated into all the official languages of the European Union.
146Secondly, as is also clear from the document entitled ‘Language rules depending on adoption procedures’, derogations regarding the number of procedural languages used for the launching of an adoption procedure, or even for the adoption of a draft act, may be granted (see paragraph 130 above).
147As regards, in particular, the permanent derogations referred to in paragraph 131 above, the document entitled ‘Language rules depending on adoption procedures’ states, for example, that individual State aid decisions are to be produced in one of the procedural languages, ‘normally English or French’. As regards other areas covered by that type of derogation, notes from the Secretary-General of the Commission, which the Commission provided to the Court in response to measures of organisation of procedure, allow draft acts to be submitted in one procedural language. However, those notes do not identify which of the three procedural languages can actually be used, so it is not possible to draw any useful conclusions from them.
148Moreover, it must not be forgotten that, according to the document entitled ‘Language rules depending on adoption procedures’, it is always possible to grant an ad hoc derogation relating to the language regime for a given draft act, regardless of the type of decision-making procedure.
149In the light of the foregoing analysis, it must be held that the documents provided by the Commission do not show that limiting the choice of second language in the competition to which the contested notice relates is appropriate for the purpose of meeting the actual needs of the service or, therefore, for the purpose of establishing, in the light of the functional specificities of the posts referred to in that notice, that the service has an interest in new recruits being immediately operational.
–The information relating to the languages used by members of the Commission’s staff performing audit duties
150The Commission provides two annexes containing statistical data gathered by DG Personnel on the languages used by officials and agents employed in its various services and performing auditing duties. According to the Commission, those annexes demonstrate that English, French and German are the three languages used as working languages or vehicular languages by administrators carrying out tasks such as those referred to in the contested notice.
151The Italian Republic argues that the data relating to the knowledge of languages among the staff concerned do not make it possible to draw any conclusions on the actual situation as regards internal communication within the services in question. However, the only relevant factor is what the main vehicular language or languages are, in other words what language or languages allow effective communication between persons having different mother tongues.
152In the first place, the annex entitled ‘Data on the use of English, French and German as vehicular languages by Commission staff working in the field of audit on 30.09.2016’ lists the languages which are declared as first, second and third languages by a total of 430 administrators working as officials and temporary staff with internal audit, external audit and audit policy responsibilities (policy officers).
153As regards the data relating to ‘language 1’, which is clearly the mother tongue of the persons concerned (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 134 (not published)), the three most common languages declared are French (68 persons), Dutch (53 persons) and English (46 persons), followed by, inter alia, Spanish (31 persons) as well as German (26 persons) and Italian (26 persons).
154As regards the data relating to ‘language 2’, the three most common languages declared are English (312 persons), French (72 persons) and German (14 persons), followed, inter alia, by Italian (7 persons), Spanish (5 persons) and Dutch (4 persons). At the hearing, the Commission stated that it should be assumed that the level of knowledge of the languages declared is equivalent to level B2 of the Common European Framework of Reference for Languages (CEFR), which reflects a ‘satisfactory’ knowledge of the language in question.
155As regards the data relating to ‘language 3’, the three most common languages declared are French (184 persons), English (51 persons) and German (49 persons), followed by Spanish (29 persons), Dutch (25 persons) and Italian (8 persons). When asked by the Court at the hearing, the Commission was unable to provide details as to the level of knowledge of the languages declared as ‘language 3’.
156It is, moreover, important to state that, as is clear from the annex entitled ‘Data on the use of English, French and German as vehicular languages by Commission staff working in the field of audit on 30.09.2016’, the data therein reflect the knowledge of languages among the staff as it was on 30 September 2016, after the date of publication of the contested notice on 12 May 2016. Nevertheless, in view of the limited period of time that elapsed between those two dates, it can be considered that those data broadly reflect the knowledge of languages among staff on the date of publication of that notice. Consequently, the data must be taken into account when assessing the merits of the reason relating to the need, as set out in the contested notice, for new recruits to be immediately operational.
157However, it must be observed that the data in question merely show the languages known by administrators performing audit duties within the Commission. Consequently, it is not possible to establish, on the basis of those data, either in themselves or in conjunction with the documents examined in paragraphs 106 to 149 above, which vehicular language or languages are actually used in the daily work of the various services from which those data originate, or even which language or languages are essential to the performance of the duties referred to in the contested notice. Therefore, it is not possible to establish, on the basis of those data, which language or languages the successful candidates in the competition to which the contested notice relates would need to have a satisfactory knowledge of in order to be immediately operational as administrators.
158For the same reasons, the additional information provided by the Commission concerning the knowledge of languages among its staff working in the field of audit and in function group AST in the category of contract staff is of no relevance to the resolution of the present dispute.
159Moreover, it must be recalled, as is clear from the case-law, that limiting the choice of the candidates’ second competition language to a restricted number of official languages cannot be regarded as objectively justified and proportionate where those languages include, in addition to a language knowledge of which is desirable or even necessary, other languages which do not confer any particular advantage on potentially successful candidates in a competition over another official language. If it is permissible to include, as an alternative to the only language which it is advantageous for a newly recruited official to know, other languages knowledge of which is not beneficial, there is no valid reason not also to include all other official languages (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 140 (not published))
160Accordingly, even if it were to be considered that the knowledge of languages among staff in active employment indicates that, in order to be immediately operational in terms of internal communication, a new recruit would need to have a command of a language that was particularly widely used among those staff, the data provided by the Commission in the present case do not justify the limitation, stipulated in the contested notice, of the choice of second language in the competition in question.
161Indeed, it follows from an analysis of the data relating to the languages declared as ‘language 1’ and ‘language 2’ (see paragraphs 153 and 154 above) that only a satisfactory knowledge of English could be regarded as conferring an advantage on potentially successful candidates in the competition in question. However, those data do not explain why a candidate who has, for example, a thorough knowledge of Italian and a satisfactory knowledge of German could be immediately operational in terms of internal communication, whereas a candidate with a thorough knowledge of Italian and a satisfactory knowledge of Dutch or Spanish could not be.
162Furthermore, as regards the data relating to ‘language 3’, although those data do not change the assessment set out in paragraph 161 above, they cannot, in any event, be taken into account. It is clear from Article 45(2) of the Staff Regulations that the ability to work in a third language is a requirement which officials must demonstrate before their first promotion after recruitment. In the present case, there is nothing in the annex provided by the Commission to suggest that all the officials referred to therein have already demonstrated such an ability, or that they have had their first promotion. Furthermore, that annex does not concern only officials, but also temporary staff and contract staff, since the latter are not subject to the same promotion scheme laid down in the Staff Regulations (see, to that effect, as regards contract staff, judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 58).
163It follows that the data relating to the knowledge of languages among Commission staff in active employment in the field of audit does not justify limiting the choice of the second language in the competition at issue in the light of the objective of recruiting successful candidates who are immediately operational.
164In the second place, the Commission provides a document containing data gathered from its internal audit service, indicating that consultations between that internal service and other Commission services take place only in English and French, while final audit reports are adopted only in English.
165In so far as that document does not contain any information capable of demonstrating that German is used as a working language or vehicular language in the services concerned, it cannot be considered as relevant to the resolution of the present dispute.
(iii)The information relating to the functioning of the Court of Auditors
166The Commission provides three annexes relating to the Court of Auditors, the first two of which concern certain language requirements applicable in that institution, and the third of which concerns the knowledge of languages among its staff. According to the Commission, those documents show that the vehicular languages used by the services of the Court of Auditors are indeed English, French and German.
167The Italian Republic disputes the relevance of those annexes, arguing that the first two concern only requirements for preparing and holding meetings of the Court of Auditors, while the third does not enable any conclusions to be drawn as to the languages used as vehicular languages by the services of the Court of Auditors.
–Information relating to the Court of Auditors’ internal language practices
168First, the Commission provides Court of Auditors Decision No 22/2004 of 25 May 2004 on rules for the translation of documents for Court Member, Audit Group and Administrative Committee meetings. In response to measures of organisation of procedure, the Commission confirmed, at the hearing, that that decision was applicable on the date of publication of the contested notice and, moreover, that it was still in force, but did not submit any additional information in that regard.
169In so far as Decision 22/2004 was in fact applicable on that date, it must be observed that, according to Article 1 of that decision, ‘the Court’s drafting/pivot languages are English and French’.
170Under Article 2 of Decision 22/2004, ‘all requests for translation shall be transmitted via the computerised translation request system (Artemis)’.
171Article 4 of Decision 22/2004 states:‘All original documents shall be produced in one of the drafting languages. An exception to that rule may be made only for important parts of documents which have been drafted by more than one originating service … Once the first translation has been provided, the document shall become monolingual.’
172First of all, as rightly observed by the Italian Republic, Decision 22/2004 is of no relevance to the present case, in so far as it does not contain any information relating to the use of German as a working language or vehicular language in the services of the Court of Auditors.
173In any event, the material scope of Decision 22/2004 is limited to the ‘translation of documents for meetings of the Court [of Auditors], Audit Groups and the Administrative Committee’. Therefore, contrary to the Commission’s submissions, the decision in question does not enable meaningful conclusions to be drawn as to the working languages or vehicular languages used by all the services of the Court of Auditors.
174Lastly, although it is clear, in particular from Articles 2 and 4 of Decision 22/2004, that all original documents are to be produced in one of the drafting languages in order subsequently to be sent for translation to the competent service of the Court of Auditors, it does not appear to be possible to infer from that the actual extent of the involvement of the Court’s translation service. In particular, the decision in question does not specify whether producing a document in the second drafting language is the responsibility of the service which produced the document in the first drafting language, or the responsibility of the translation service. Thus, no meaningful conclusion can be drawn from that decision concerning the working languages or vehicular languages used by the services of the Court of Auditors and, more specifically, by the services to which, where appropriate, the successful candidates in the competition to which the contested notice relates are to be recruited (see paragraph 138 above).
175In the second place, the Commission provides a memorandum from a former President of the Court of Auditors for the attention of its members of 11 November 1983, relating to simultaneous interpreting at meetings of the Court of Auditors. Annexed to that memorandum are, first, the minutes of the restricted session of 12 October 1982 concerning the interpreting arrangements for meetings of the Court of Auditors and, second, a memorandum for the attention of the members, also signed by the President of the Court of Auditors and dated the same day, concerning interpreting for meetings of the Court of Auditors and the practical organisation of those meetings.
176The memorandum dated 12 October 1982 describes the ‘set of ordinary rules’ for simultaneous interpreting at meetings of the Court of Auditors. According to those rules, each member is to be able to express himself in his own language, with interpreting therefore being provided in all the languages spoken by the members attending the meeting concerned. Those rules were relaxed by the adoption of a ‘semi-streamlined’ system by unanimous agreement at the session on the same date, the minutes of which are referred to in paragraph 175 above. Under that system, which is intended to remain applicable in place of the ‘set of ordinary rules’ provided that it has the unanimous support of the members of the Court of Auditors, interpreting is to be provided ‘in a sufficient number of languages understood by each of the members’. Lastly, as is apparent from the memorandum of 11 November 1983, that system was further simplified, by mutual agreement of the members of the Court of Auditors, in order for each member to be able to choose whether to express himself in English, French or German, with simultaneous interpreting into the other two languages. That ‘streamlined’ interpreting arrangement was adopted with the ‘sole objective of addressing the factual situation which exist[ed] [at] that time in the Court, taking into account the different language skills of the members [at the time], and the good will of each of them’. As stated by the Commission at the hearing, that ‘streamlined’ system is still applicable today.
177It must be held that it is not possible to determine, based on the documents referred to in paragraphs 175 and 176, which working language(s) or vehicular languages are used in the services which are recruiting the successful candidates in the competition to which the contested notice relates. Those documents concern only interpreting arrangements for meetings of the Court of Auditors.
178Moreover, the purpose of those documents, relating to the interpreting arrangements for meetings of the members of the Court of Auditors, is clearly different from that of Decision 22/2004, as set out in paragraph 173 above. Therefore, the Commission’s argument seeking, in essence, to establish that – by virtue, inter alia, of the memorandum of 11 November 1983 – German was added to the two ‘drafting/pivot languages’ which, according to that later decision, are English and French, cannot succeed.
179Moreover, even if the memorandum of 11 November 1983 reflects a practice which is still current as regards interpreting at meetings of the members of the Court of Auditors, the fact remains that, as is apparent from the very wording of that memorandum, such a factual situation is dependent on a mutual agreement between those members and on the ‘good will’ of each of them, which are factors that are liable to change at any time.
180It is clear from all the foregoing that the documents provided by the Commission on the internal language practices at the Court of Auditors are of no relevance to the resolution of the present dispute.
–The information on the languages used by the staff of the Court of Auditors
181Furthermore, the Commission provides a table entitled ‘Languages spoken by staff of the Court of Auditors in active service on 30.09.2016’ which shows, according to the Commission, that English, French and German are the most widely spoken as second and third languages by those members of staff.
182The Italian Republic disputes the relevance of that document, arguing, inter alia, that it merely shows the languages known by the staff of the Court of Auditors and that, moreover, the way in which it has been drawn up makes it totally incomprehensible.
183In that regard, it must be observed that that table contains data on the languages declared as first, second and third languages by ‘auditors’, AD officials and all officials of the Court of Auditors.
184Besides the fact that those data are from 30 September 2016 (see paragraph 156 above), it must be observed that, as regards the part of that table relating to ‘auditors’ (303 persons), in other words administrators whose duties may be presumed to be the same as those referred to in the contested notice, and excluding the data relating to ‘language 3’ (see paragraph 162 above), English is declared as ‘language 1’ by 14 persons and as ‘language 2’ by 228 persons, French by 39 persons and 45 persons respectively, and German by 30 and 19 persons respectively. Next come Spanish (24 and 3 persons) and Italian (22 and 3 persons), while Polish is declared as ‘language 1’ by 30 persons.
185However, like the data provided by the Commission concerning its own staff (see paragraph 157 above), the data in that table merely show the languages known by various categories of officials of the Court of Auditors. Consequently, it is not possible to establish, on the basis of those data, either in themselves or in conjunction with the documents examined in paragraphs 168 to 180 above, which vehicular language or languages are actually used in the daily work of the services from which those data originate, or even which language or languages are essential to the performance of the duties referred to in the contested notice. Therefore, it is not possible to establish, on the basis of those data, which language or languages the successful candidates in the competition to which the contested notice relates would need to have a satisfactory knowledge of in order to be immediately operational
186In any event, based on those data, it is at most possible to conclude that only a satisfactory knowledge of English is capable of conferring an advantage on potentially successful candidates in the competition to which the contested notice relates, for the purposes of the case-law referred to in paragraph 159 above. However, those data do not explain why a candidate who has, for example, a thorough knowledge of Italian and a satisfactory knowledge of German could be immediately operational in terms of internal communication, whereas a candidate with a thorough knowledge of Italian and a satisfactory knowledge of Dutch or Spanish could not be.
187Consequently, the data provided by the Commission on the knowledge of languages among the staff of the Court of Auditors does not justify limiting the choice of the second language in the competition at issue in the light of the objective of recruiting successful candidates who are immediately operational.
188In the light of the analysis carried out in paragraphs 106 to 187 above, it must be held that none of the information provided by the Commission regarding its own services and those of the Court of Auditors is capable of substantiating the reason, set out in the contested notice, relating to the need for the administrators recruited to be immediately operational.
(iv)The information on the extent to which English, French and German are spoken and studied as foreign languages in Europe
189The Commission argues that, when weighing up the various interests involved in the organisation of a competition procedure, it is necessary to consider factors such as which languages are the most widely studied as a second language by those who are candidates for entry into the EU civil service, namely ‘young citizens of the European Union’.
190In support of its arguments, first, the Commission provides a report of the statistical office of the European Union (Eurostat) published in Statistics in Focus No 49/2010. That report concludes, first, that English is ‘by far the foreign language most studied [in Europe] at all levels of education, followed by French, German, Russian, and, to a lesser extent, Spanish’ and secondly, that ‘the best known foreign language by far[, in Europe,] is perceived to be English, followed by German, Russian, French and Spanish’.
191Secondly, the Commission provides the report Special Eurobarometer No 386 of June 2012, from which it infers that German is the most widely spoken language in Europe ‘since it is used by 16% of the entire EU population … and that the three foreign languages which are most widely studied and spoken as a second language in Europe are, in order, English, French and German, which are spoken by 38%, 12% and 11% of the EU population respectively’.
192Lastly, thirdly, the Commission annexes to its written pleadings Eurostat press release No 144/2014 of 25 September 2014 on the languages most widely studied in 2012 at lower secondary level, inferring from it that three languages in question ‘appear … to be the languages most widely studied in Europe by European citizens, that is to say by those able to apply to competitions under Article 28(a) of the Staff Regulations’.
193In that regard, it must be observed that the statistical data in question refer to all citizens of the European Union, including those who have not reached the age of majority, so it cannot be presumed that they correctly reflect the knowledge of languages among the potential candidates in the competition to which the contested notice relates (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 142 (not published)).
194In any event, the only thing that those statistics show is that the number of potential candidates who are adversely affected by the limitation of the candidates’ choice of second language to English, French and German in the competition to which the contested notice relates is lower than would be the case if that choice were limited to other languages. However, that is not sufficient to conclude that the limitation in question is not discriminatory, since the potentially restricted number of adversely affected persons cannot constitute a valid argument in that regard (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 143 (not published)).
195At most, those data may be capable of demonstrating that the limitation in question is proportionate, if it were proven that the limitation met the need of the services concerned by the contested notice to recruit successful candidates who are immediately operational (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 144 (not published)), or even that it fulfilled requirements relating to budgetary and operational constraints, or to the nature of the selection procedure. However, as was found, in particular in paragraphs 91 and 188 above, the Commission has failed to prove that that limitation was actually justified by such considerations.
196Therefore, for those reasons, the statistical data mentioned in paragraphs 190 to 192 above are not capable, either in themselves or taken together with the other documents before the Court, including in particular those referred to in paragraph 89 above, of justifying the limitation of the choice of second language in the competition at issue to English, French and German.
197For all of the above reasons, it must therefore be held that limiting the candidates’ choice of second language to English, French and German in the competition to which the contested notice relates is neither objectively justified nor proportionate to the primary aim pursued, which, according to the Commission, is to recruit administrators who are immediately operational. Moreover, and following on from the considerations set out in paragraphs 85 to 91 above, even if taken together with the reasons relating to the need to recruit administrators who are immediately operational, the reasons relating to budgetary and operational constraints and to the nature of the selection procedure cannot justify the limitation in question.
198It is not sufficient to defend the principle of such a limitation by referring to the large number of languages recognised under Article 1 of Regulation No 1 as official languages and working languages of the European Union and by citing the resulting need to choose a smaller number of languages, even a single language, as languages for internal communication or ‘vehicular languages’. It is also necessary, in the light of Article 1d(1) and the first sentence of Article 1d(6) of the Staff Regulations, to provide objective justification for the choice of one or more specific languages, to the exclusion of all others (see, to that effect, judgment of 15 September 2016, Italy v Commission,, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 156 (not published) and the case-law cited).
199That is precisely what both EPSO, as author of the contested notice, and the Commission, as defendant before the Court, have failed to do.
200Consequently, the Court must uphold the third and seventh pleas in law raised by the Italian Republic and annul the contested notice, in so far as it limits the choice of second language in the competition at issue to English, French and German.
201It must be observed, moreover, that the inevitable consequence of the finding of unlawfulness is that the limitation on the language to be used for some of the tests in the last stage of the competition to which the contested notice relates is also unlawful (see paragraph 13 above).
B.The lawfulness of limiting the choice of the language for communication between the candidates in the competition to which the contested notice relates and EPSO
202The part of the contested notice concerning the limitation of the choice of languages that may be used in communications between the candidates in the competition in question and EPSO is the subject of the sixth plea relied on by the Italian Republic. That plea alleges an infringement of Article 18 and the fourth paragraph of Article 24 TFEU, Article 22 of the Charter, Article 2 of Regulation No 1 and Article 1d(1) and (6) of the Staff Regulations.
203According to the Italian Republic, those provisions show that all EU citizens have the right to address the institutions using any EU language, and that they have the right to receive answers from the institutions in the same language. That right has been infringed by the limitation at issue in the present case. Relying on the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), the Italian Republic argues that, far from being merely a matter of internal organisation, the language used in a competition procedure is one of the constituent elements of a relationship of a constitutional nature between the citizen concerned and the European Union. Consequently, the competition language must be the language of the citizen, namely the candidate, who is not yet part of the EU civil service.
204The Italian Republic states, moreover, that the contested notice is vitiated by a manifest failure to state reasons, in so far as it is totally silent as to the reasons justifying the limitation of the choice of languages that may be used to complete the application form.
205The Kingdom of Spain supports the arguments put forward by the Italian Republic.
206For its part, the Commission observes that the paragraphs of the judgment of 27 November 2012, Italy v Commission (C‑566/10 P, EU:C:2012:752), relied on by the Italian Republic, are not relevant in the present case, in so far as they address only the question of the language in which competition notices are published.
207In any event, the Commission states that, as regards the competition to which the contested notice relates, a distinction must be drawn according to whether the communication concerns general and hypothetical matters, or is of a specific nature in that it serves to declare the candidate’s interest in obtaining a post in the EU civil service, as is the case with, inter alia, the application form.
208In the first scenario, candidates may indicate at least two EU languages in which they wish to receive answers from EPSO. Thus, the argument relating to an infringement of the provisions of Regulation No 1 cannot succeed in that regard. To that end, the Commission provides a contact form which EPSO made available to the candidates on its website, as well as some data relating to the languages in which that service provided answers to questions or applications submitted in the context of the competition to which the contested notice relates.
209In the second scenario, candidates are required to use their second competition language, which is to be chosen from English, French and German only. Such a limitation is justified by Article 28(f) of the Staff Regulations, under which, in order to be appointed, officials must have knowledge of two EU languages, but also by the need to ensure equal treatment of all candidates. Moreover, that limitation meets the interests of the service in ensuring that communications of that type are quick and efficient, that they are managed equitably by the selection board ‐ whose working languages are always the three abovementioned languages ‐ and by EPSO, and, lastly, that they are not a drain on EPSO’s resources.
210First of all, as regards the failure to state reasons alleged by the Italian Republic, it is clear from point 3 of Annex II to the contested notice that the limitation of the choice of the language of communication, including the language of the application, is based, in essence, on the need to ‘communicate quickly and efficiently’ and to ensure that ‘[the candidates] can be compared on an equal footing’ Therefore, the Italian Republic’s argument alleging a failure to state reasons must be dismissed.
211Secondly, as regards the existence of discrimination and the possible justification for such discrimination, it must be recalled that, in accordance with Article 2 of Regulation No 1, which corresponds, in essence, to the fourth paragraph of Article 24 TFEU and Article 41(4) of the Charter, documents sent to the institutions of the European Union by a person subject to the jurisdiction of a Member State may be drafted in any one of the official languages referred to in Article 1 of that regulation selected by the sender, and the institution’s reply must be drafted in that language. As an essential component of respect for the linguistic diversity of the European Union, the importance of which is recalled in the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter, the right for those persons to choose, from among the official languages of the European Union, the language to be used in exchanges with the institutions is fundamental in nature (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 36).
212However, as is apparent from the case-law of the Court, it cannot be inferred from the European Union’s obligation to respect linguistic diversity that there is a general principle of law entitling each person to have everything likely to affect his or her interests drafted in his or her language in all circumstances, and that the institutions are required, without any derogation being permissible, to use all the official languages in all situations (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 37 and the case-law cited).
213In particular, in the context of EU staff selection procedures, the Court has held that the institutions cannot be required to comply with obligations going beyond the requirements laid down in Article 1d of the Staff Regulations (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 39 and the case-law cited).
214It follows from Article 1d(1) and the first sentence of Article 1d(6) of the Staff Regulations that, although it is not excluded that the interests of the service may justify limiting the choice of second language in a competition, including the language or languages of communication between the candidates and EPSO, to a restricted number of official languages which are most widely known in the European Union, such a limitation must nevertheless be based on elements which are objectively verifiable, both by candidates and by the EU Courts, such as to justify the knowledge of languages required, which must be proportionate to the actual needs of the service (see, to that effect, judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 124 and the case-law cited).
215In that regard, it must be observed that, according to the introductory part of Annex II to the contested notice, ‘candidates must use their second competition language (English, French or German) when filling in the online applications and EPSO must use these languages for mass communication to candidates who have submitted a valid application’ (see paragraph 8 above).
216Moreover, in point 3 of Annex II to the contested notice, it is stated that ‘candidates may contact EPSO in any official EU language but, in order for EPSO to handle their query more efficiently, candidates are encouraged to choose from among a limited number of languages for which EPSO staff is able to provide immediate linguistic coverage without the need to resort to translation’ (see paragraph 11 above).
217As regards communications of that type, based on the information put forward by the Commission and mentioned in paragraph 208 above, it does not appear that the candidates were not able to communicate with EPSO in the official language of their choice. However, the languages to be used to complete their application forms and for ‘mass communication to candidates who have submitted a valid application’ were limited to English, French and German. Thus, for the same reasons as those set out in paragraphs 51 to 55 above as regards the second language of the tests in the competition to which the contested notice relates, such a limitation constitutes discrimination on grounds of language, which is, in principle, prohibited by Article 1(d)(1) of the Staff Regulations.
218Furthermore, that limitation cannot be offset by the possibility, referred to in paragraph 217 above, for candidates to communicate in the official language of their choice with EPSO about other aspects of the selection procedure at issue (see, to that effect, judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 48).
219As regards the merits of the reasons for that limitation relating, in essence, to the need to communicate quickly and efficiently and to ensure that the candidates are compared on an equal footing (see paragraph 210 above), those reasons, in themselves, can merely justify a theoretical limitation of the number of languages which may be used to complete the application form and for ‘mass communication’ between EPSO and the eligible candidates. However, as the Commission itself acknowledges, in essence, in paragraph 148 of its defence, those reasons would justify limiting the languages of communication to English, French and German only if a satisfactory knowledge of those languages would enable those candidates, in the light of the nature of the duties to be performed and the actual needs of the service, to be immediately operational.
220As stated in paragraph 197 above, that is not the case here.
221Furthermore, the Commission’s argument relating to the existence of budgetary constraints must be dismissed for the same reasons as those set out in paragraphs 85 to 88 above. Similarly, in the light of the analysis, in paragraphs 106 to 188 above, of the information provided by the Commission regarding its own functioning and that of the Court of Auditors, the Commission’s argument that the working languages of the officials on the competition selection board are ‘always’ English, French and German must be dismissed.
222In the light of the foregoing, the sixth plea raised by the Italian Republic must be upheld and, consequently, the contested notice must be annulled in so far as it limits the choice of the language of communication between the candidates and EPSO to English, French and German only.
223Therefore, without it being necessary to examine the other pleas raised by the Italian Republic, the present action must be upheld and the contested notice annulled in its entirety.
224It is important to note that, in the light of what is set out in paragraph 36 above, the findings of illegality as regards the language regime stipulated in the contested notice affect the selection procedure at issue as a whole and, therefore, entail the annulment of that notice in its entirety (see, to that effect, order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 130).
225As regards the effects of the annulment of the contested notice, it must be stated that, at the hearing, when questioned on this point by the Court, the Italian Republic considered that it was appropriate to draw the appropriate conclusions therefrom by also annulling the reserve lists drawn up following the competition at issue. Indeed, in the light of the case-law of the General Court since 2012, there cannot be any legitimate expectation that those lists would be retained. The Kingdom of Spain endorsed the position taken by Italian Republic.
226In response, the Commission maintained that, unlike in the case which gave rise to the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249), in which the Kingdom of Spain expressly sought the annulment of the database created pursuant to the call for expressions of interest which was annulled by that judgment, in the present case, the Italian Republic is not entitled to seek the annulment of the reserve lists drawn up following the competition at issue because its application contains no head of claim in that regard. Moreover, according to the Commission, the selection procedure at issue in the case which gave rise to the abovementioned judgment was much more flexible than that which is at issue in the present case, so the annulment of all the results of the latter procedure would appear to be totally unjustified.
227In that regard, it must be recalled that, according to settled case-law, only the form of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the order sought (see judgment of 25 February 2016, Musso v Parliament, T‑589/14 and T‑772/14, not published, EU:T:2016:101, paragraph 30 and the case-law cited). Accordingly, as a matter of principle, a party may not submit fresh claims or extend the subject matter of existing claims in the course of the proceedings, which would entail changing the subject matter of the dispute (see, to that effect, judgment of 8 July 1965, Krawczynski v Commission, 83/63, EU:C:1965:70, p. 785), unless the conditions for the application of Article 86 of the Rules of Procedure, relating to the modification of the application, are satisfied. However, it is clear from the documents before the Court in the present case that that is not the case here.
228Consequently, in so far as the position taken by the Italian Republic at the hearing could be regarded as seeking the annulment of the reserve lists drawn up following the competition at issue, such an application must be dismissed as inadmissible in so far as it does not comply with the requirements set out in paragraph 227 above.
229In any event, it must be recalled that, under Article 266 TFEU, the institution whose act has been annulled is required to take the necessary measures to comply with the judgment annulling that act. The Court held in this regard that, in order to comply with such a judgment and to implement it fully, the institution concerned was required to have regard not only to the operative part of that judgment but also to the grounds which led to the judgment and constituted the essential basis for it, in so far as they were necessary to determine the exact meaning of what had been stated in the operative part (see judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 35 and the case-law cited).
230However, for reasons similar to those set out in paragraphs 83 to 87 of the judgment of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249, paragraph 85), the annulment of the contested notice cannot have any impact on any recruitment already made based on the reserve lists drawn up following the selection procedure at issue, in the light of the legitimate expectations of candidates who have already been offered a post on the basis of their inclusion on those lists (see, to that effect, order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 131).
Costs
231Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Italian Republic.
232Article 138(1) of the Rules of Procedure provides that Member States and institutions which have intervened in the proceedings are to bear their own costs. Therefore, the Kingdom of Spain is to bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Ninth Chamber),hereby:
1.Annuls the notice of open competition EPSO/AD/322/16 to draw up reserve lists of administrators in the field of audit (AD 5/AD 7);
2.Orders the European Commission to bear its own costs and to pay those incurred by the Italian Republic;
3.Orders the Kingdom of Spain to bear its own costs.
Delivered in open court in Luxembourg on 9 September 2020.
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