Contents
Judgment of the General Court (Sixth Chamber)8 May 2024note(Rules on languages — Notice of open competition for the recruitment of administrators and experts in the fields of defence industry and space — Restriction of the choice of language 2 to English — Regulation No 1 — Article 1d(1), Article 27 and Article 28(f) of the Staff Regulations — Discrimination on grounds of language — Interest of the service — Proportionality)In Case T‑555/22,French Republic, represented by T. Stéhelin, B. Fodda and S. Royon, acting as Agents,supported byKingdom of Belgium, represented by C. Pochet, M. Van Regemorter and S. Baeyens, acting as Agents,byHellenic Republic, represented by V. Baroutas, acting as Agent,and byItalian Republic, represented by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,vEuropean Commission, represented by G. Niddam, L. Vernier and I. Melo Sampaio, acting as Agents,THE GENERAL COURT (Sixth Chamber),composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and E. Tichy‑Fisslberger, Judges,Registrar: H. Eriksson, Administrator,having regard to the written part of the procedure,further to the hearing on 23 November 2023,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, the French Republic, seeks annulment of notice of open competition EPSO/AD/400/22 entitled ‘Administrators (AD 7) and experts (AD 9) in the fields of defence industry and space’ (OJ 2022 C 233 A, p. 1; ‘the contested notice of competition’).
Background to the dispute
2On 1 January 2020, the European Commission created a new Directorate-General for Defence Industry and Space to implement the Commission’s policies in the field of the defence industry, responsibility for which had been held until then by the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs.
3On 16 June 2022, the European Personnel Selection Office (EPSO) published the contested notice of competition in the Official Journal of the European Union.
4Under the terms of the ‘General provisions’ of the contested notice of competition, ‘[EPSO] is organising an open competition based on qualifications and tests to draw up reserve lists from which mainly the European Commission, in particular its Directorate-General for Defence Industry and Space …, may recruit new members of the civil service (function groups AD 7 and AD 9) [in the fields of defence industry and space]’.
5Section 4.1 (entitled ‘Overview of the competition procedures’) of the contested notice of competition states that the competition will be organised in five phases: ‘Application’, ‘Eligibility check’, ‘Talent screener’, ‘Assessment centre’ and ‘Check of supporting documents and establishment of reserve lists’.
6Under Section 3.2 (entitled ‘Specific conditions – languages’) of the contested notice of competition, ‘to be eligible, a candidate must have knowledge of at least two of the 24 official EU languages, as provided for in section 4.2.1’.
7According to Section 4.2.1 (entitled ‘Language requirements’) of the contested notice of competition:‘A candidate in this competition must at least have a thorough knowledge (minimum C1 level) of one of the 24 official EU languages and a satisfactory knowledge (minimum B2 level) of a different official EU language. One of these languages must be English’.…The language requirements in this competition, i.e. the fact that certain tests must be sat in English, take into account the specificity of the duties of [the staff of the Directorate-General for Defence Industry and Space]. The same requirements apply to both fields and grades covered by this notice of competition.Staff of [the Directorate-General for Defence Industry and Space] mostly use English for analytical work, internal communication and meetings, communication with external stakeholders, drafting reports, briefings, speeches and legislation, preparing publications, for performing other duties mentioned in Annex I as well as for taking part in specialist training courses. English is also used in inter-service consultations, inter-institutional communication and in the audit procedures. A good command of English is therefore essential for candidates to be immediately operational upon recruitment.Knowledge of other languages is considered an asset since other languages are used in particular instances, for example, for country-specific work. However, successful candidates must have at least a satisfactory knowledge (B2 level) of English to be able to perform the duties listed in Annex I.For these reasons, English must be amongst the languages mastered by the candidates. This also determines the use of the languages in the application form and in the tests (see Section 4.2.2)’.
8Annex I to the contested notice of competition provides examples of typical duties that successful candidates in that competition may be asked to perform, depending on the domain (defence industry or space) and the duty performed (administrator or expert).
9Section 4.2.2 (entitled ‘Application and test languages’) of the contested notice of competition states that application must be in any of the 24 official EU languages, except for the ‘Talent Screener’ section, which must be completed in English. As regards the assessment centre tests, reasoning tests must be completed in an official EU language other than English. The situational competency-based interview, the oral presentation, the field-related interview and the field-related written test must be completed in English.
10That section states, moreover, that ‘candidates are requested to fill in the “Talent Screener”’ part of their application form in English because their answers will be subject to a comparative assessment by the Selection Board’ and that ‘the “Talent Screener” part of the application may be used as a reference document by the Board during the field-related interview’.
11Under Section 4.3.3 (entitled ‘Talent screener’) of the contested notice of competition:‘For the candidates deemed eligible, the Selection Board will carry out selection based on qualifications. To do so, the Selection Board will perform a comparative assessment of the merits of all the eligible candidates based on the information provided in their application form. Further details are provided in Annex IV to this notice. As a result of this assessment, the Selection Board will draw up a list of candidates per field and per grade in the order of the overall scores awarded. The candidates with the highest scores will be invited to the [assessment centre].’
12Annex IV to the contested notice of competition sets out the selection criteria for each field and the ‘talent screener’ selection procedure.
Forms of order sought
13The French Republic, supported by the Kingdom of Belgium, the Hellenic Republic and the Italian Republic, claims that the Court should:– annul the contested notice of competition;– order the Commission to pay the costs.
14The Commission contends that the Court should:– dismiss the action;– order the French Republic to pay the costs.
Law
15In support of its action, the French Republic relies on five pleas in law. The first plea alleges infringement of Article 1d of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), read in the light of Articles 21 and 22 of the Charter of Fundamental Rights of the European Union. The second plea alleges infringement of the first paragraph of Article 27 of the Staff Regulations. The third plea alleges circumvention of the procedure laid down in Article 342 TFEU, and of the procedure laid down in Article 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 by Council Regulation (EU) No 517/2013 of 13 May 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, transport policy, energy, taxation, statistics, trans-European networks, judiciary and fundamental rights, justice, freedom and security, environment, customs union, external relations, foreign, security and defence policy and institutions, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 1). The fourth plea alleges infringement of the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights. The fifth plea alleges infringement of the obligation to state reasons for legal acts of the European Union, laid down in the second paragraph of Article 296 TFEU.
16In support of its first plea, the French Republic claims that, in view of the use and usefulness of official EU languages other than English in the context of the work of the Directorate-General for Defence Industry and Space, in particular French, the ground based on the need for persons recruited to be immediately operational upon recruitment is no justification for the restriction of the choice of language 2 of the competition to English (‘the language restriction at issue’), since such a restriction does not meet the real needs of the service. It disputes the relevance of the documents produced by the Commission to demonstrate the predominant use of the English language in the work of the staff of the Directorate-General for Defence Industry and Space. The French Republic also maintains that the Commission has failed to establish any link between the use of English within the Directorate-General for Defence Industry and Space and the duties described in the contested notice of competition. The French Republic also claims that the restriction at issue is not based on clear, objective and foreseeable criteria. It submits, furthermore, that even if the discrimination at issue were to be justified by the use of English within the directorate-general in question, the Commission has failed to demonstrate that such discrimination is proportionate.
17The Kingdom of Belgium, the Hellenic Republic and the Italian Republic support the French Republic’s arguments. The Kingdom of Belgium and the Italian Republic add that the Commission cannot equate the interest of the service merely to the need for officials recruited to be immediately operational for the purposes of internal and external communication. Thus, the Kingdom of Belgium states that, although the General Court acknowledged in the judgments of 2 June 2021, Italy v Commission (T‑718/17, not published, EU:T:2021:316, paragraphs 63 and 64), and of 8 September 2021, Spain v Commission (T‑554/19, not published, EU:T:2021:554, paragraph 65), that the objective of immediate operational capability could be a legitimate objective, the Court of Justice did not consider in the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98, paragraph 96), that such an objective exempted the Commission from establishing objectively whether the interest of the service justified a restriction of language 2 of a competition. Moreover, the Kingdom of Belgium states that the General Court itself recalled in the judgment of 2 June 2021, Italy v Commission (T‑718/17, not published, EU:T:2021:316, paragraph 70) that the objective that officials recruited should be immediately operational should be weighed up against the objective of recruiting officials of the highest standard of ability, efficiency and integrity, and against the opportunities for officials recruited to learn, within the institutions, the languages necessary in the interest of the service. According to the Kingdom of Belgium, there are also, as was emphasised by the French Republic, other objectives that must be weighed up against the objective of immediate operability, such as protection of the linguistic diversity of the European Union, ‘bringing multilingualism to life’, ‘recruiting staff with varying linguistic profiles due to the variety of the tasks and the plurality of contacts involved in the action of the European Union or the need to become rooted in the society of the host State’.
18The Commission contends that it follows from the evidence produced before the Court that English is the main working language of the Directorate-General for Defence Industry and Space and that a command of that language is therefore necessary in order for persons recruited to be immediately operational, which constitutes an objective of general interest of staff policy recognised by the EU courts. It states that no other official EU language is used to the same extent as English within the Directorate-General for Defence Industry and Space so as to justify, in the light of the case-law, the designation of that language as language 2 of the competition in question. According to the Commission, the language restriction at issue is also proportionate to the objective that persons recruited should be immediately operational, no other language rules apart from those laid down in the contested notice of competition being appropriate, according to the case-law, to enable that objective of general interest to be attained.
19As a preliminary point, it should be recalled that Article 21(1) of the Charter of Fundamental Rights provides:‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’
20Article 22 of the Charter of Fundamental Rights provides:‘The Union shall respect cultural, religious and linguistic diversity.’
21It should also be borne in mind that Article 1 of Regulation No 1 provides that:‘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.’
22It should be noted also that, while Article 1 of Regulation No 1 lays down expressly the working languages of the EU institutions, Article 6 of that regulation provides that those institutions may stipulate in their rules of procedure which of the languages are to be used in specific cases.
23In that regard, it should be held from the outset that it cannot be established on the basis of the evidence contained in the file in the present case that the institution to which the service essentially concerned by the contested notice of competition belongs, namely the Commission, had, up until the publication of that notice, adopted provisions in its rules of procedure designed to stipulate which of the languages laid down by Regulation No 1 in general are to be used in specific cases, in accordance with Article 6 thereof.
24Furthermore, Article 1d(1) of the Staff Regulations provides that in the application of those regulations, any discrimination based on any ground, such as, inter alia, language, is prohibited. According to 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’.
25Furthermore, Article 28(f) of the Staff Regulations provides that an official may be appointed only on condition that he or she produces 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 called upon to carry out, it does not state the criteria which may be taken into consideration in order to restrict the choice of that language among the official languages mentioned in Article 1 of Regulation No 1 (see judgment of 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 62 and the case-law cited).
26Similarly, no such criteria are laid down in Article 27 of the Staff Regulations, which provides in the first paragraph thereof, without making reference to language knowledge, 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 [EU] 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’ (judgment of 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 63).
27Lastly, 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 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 64 and the case-law cited).
28It is apparent from all those considerations that limiting the choice of the second language of candidates in a competition to a restricted number of languages, to the exclusion of the other official languages, constitutes discrimination on grounds of language, which is in principle prohibited under Article 1d(1) of the Staff Regulations (see, to that effect, judgment of 26 March 2019, Spain v European Parliament, C‑377/16, EU:C:2019:249, paragraph 66). It is clear that such a provision favours certain potential candidates (namely those who have a satisfactory knowledge of at least one of the designated languages), since they may participate in the competition and thus be recruited as officials or servants of the European Union, while others who do not have such knowledge are excluded (see judgment of 9 September 2020, Spain and Italy v Commission, T‑401/16 and T‑443/16, not published, EU:T:2020:409, paragraph 65 and the case-law cited).
29The broad discretion enjoyed by the EU institutions with regard to the organisation of their departments, like EPSO where the latter exercises the powers conferred on it by those institutions, is therefore governed in mandatory terms by Article 1d of the Staff Regulations, so that differences of treatment on grounds of language resulting from restrictions on the language regime of a competition to a limited number of official languages can be accepted only if such a restriction is objectively justified and proportionate to the real needs of the service. In addition, any requirement relating to specific language skills must be based on clear, objective and foreseeable criteria enabling candidates to understand the reasons for that requirement and allowing the Courts of the European Union to review the lawfulness thereof (see judgment of 16 February 2023, Commission v Italy and Spain, C‑635/20 P, EU:C:2023:98, paragraph 68 and the case-law cited).
30It should also be noted that the Court ruled, in paragraph 65 of the judgment of 8 September 2021, Spain v Commission (T‑554/19, not published, EU:T:2021:554), that, save as otherwise provided in the relevant notice of competition, it is indeed in the interest of the service that persons recruited by the EU institutions following a selection procedure such as the selection procedure at issue in the case that gave rise to that judgment can be immediately operational and thus capable of quickly taking on the duties that those institutions intend to entrust to them.
31The Court also ruled in paragraph 66 of the judgment of 8 September 2021, Spain v Commission (T‑554/19, not published, EU:T:2021:554), that, even if it is always necessary to provide for time to adapt to new tasks and new working habits and for time needed for integration into a new service, it is legitimate for an institution to seek to recruit persons who, from the time they take up their duties, are capable at least, first, of communicating with their superiors and colleagues and thus to have the ability to grasp as quickly and as fully as possible the scope of the duties entrusted to them and the content of the tasks they will be required to perform and, secondly, to interact with the staff and outside contacts of the services concerned.
32The Court concluded that it should be considered legitimate for an institution to seek to recruit persons who can use effectively and understand as well as possible the language or languages used in the professional context in which those persons would be working (judgment of 8 September 2021, Spain v Commission, T‑554/19, not published, EU:T:2021:554, paragraph 66).
33Having regard to those considerations, the Court determined whether, in the light of the elements provided by the Commission, the knowledge of one of the four languages proposed in the contested notice of competition in that case could enable successful candidates in the competition concerned to be immediately operational upon recruitment (see, to that effect, judgment of 8 September 2021, Spain v Commission, T‑554/19, not published, EU:T:2021:554, paragraph 73).
34It is in that specific context that the Court considered that limiting the choice of candidates’ second language in a competition 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 (see, to that effect, judgment of 8 September 2021, Spain v Commission, T‑554/19, not published, EU:T:2021:554, paragraph 122).
35It is therefore clear from the judgment of 8 September 2021, Spain v Commission (T‑554/19, not published, EU:T:2021:554), which has not been the subject of an appeal, that discrimination on grounds of language may be justified by the interest of the service in having officials with a command of the language or languages used by the service in question so that they are immediately operational.
36However, it must be pointed out that in the judgment of 16 February 2023, Commission v Italy and Spain (C‑635/20 P, EU:C:2023:98), the Court of Justice stated that it was for the institution which had limited the language regime of a selection procedure to a restricted number of official languages of the European Union to establish that such a restriction was indeed appropriate for the purpose of meeting the real needs relating to the duties that the persons recruited would be required to carry out, that it was proportionate to those needs and that it was based on clear, objective and foreseeable criteria, whereas it was for the General Court to carry out an actual assessment of whether that restriction was objectively justified and proportionate in the light of those needs (see judgment of 16 February 2023, Commission v Italy and Spain, C‑635/20 P, EU:C:2023:98, paragraph 69 and the case-law cited).
37The existence of a link between the language restriction and the duties that the persons recruited would be required to carry out had thus already been required by the Court of Justice in the judgments of 26 March 2019, Spain v Parliament (C‑377/16, EU:C:2019:249, paragraph 69) and of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251). In the latter judgment, which concerned the lawfulness of a notice of open competition to constitute a reserve list of administrators (AD 5) in the field of data protection, the Court of Justice ruled that, in order for the General Court to be in a position to check whether the rules governing the competitions at issue were consistent with Article 1d of the Staff Regulations, it was incumbent upon it to carry out an actual assessment of those rules and the specific circumstances at issue. In the view of the Court, only an assessment was capable of establishing knowledge of languages which could objectively be required, in the interests of the service, by the institutions for specific duties and, consequently, whether the restriction on the choice of the languages which may be used in order to participate in those competitions was objectively justified and proportionate to the real needs of the service (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 94).
38In that regard, it should be noted that the language restriction at issue, in so far as it restricts the choice of language 2 of the competition to which the contested notice of competition relates solely to the English language, to the exclusion of the other official languages of the European Union, constitutes discrimination based on language, which is prohibited in principle, as the Commission itself recognises.
39It is therefore appropriate to determine, according to the case-law cited in paragraphs 29 to 37 above, whether that language restriction is objectively justified by the real needs of the service and proportionate to those needs.
Suitability of the language restriction at issue to meet the real needs of the service
40The French Republic claims that the language restriction at issue constitutes discrimination based on language, which is prohibited, in principle, by Article 1d(1) of the Staff Regulations, read in the light of Articles 21 and 22 of the Charter of Fundamental Rights.
41In that regard, the French Republic notes that EPSO justifies the language restriction at issue by maintaining that, since the staff of the Directorate-General for Defence Industry and Space use mainly English both for all the typical duties which successful candidates in the competition may be required to carry out and for its internal, inter-service and external communications, a good command of English is essential in order for candidates to be immediately operational upon their recruitment to the Directorate-General for Defence Industry and Space. According to the French Republic, those assertions are general, abstract and not supported by any specific quantitative or qualitative evidence, either in the contested notice of competition or in the Commission’s defence.
42The French Republic argues that, contrary to what is stated by EPSO in the contested notice of competition, a significant number of exchanges within the Directorate-General for Defence Industry and Space take place in French. The special place of French within the Directorate-General for Defence Industry and Space is due, in particular, to the experience gained by some officials at the École de guerre in Paris (France). Moreover, meetings are regularly held in French, many mission reports are drafted in that language, and certain newsletters from the Directorate-General for Defence Industry and Space are also published in French. The French Republic also observes that the Commissioner for Internal Market, Mr Thierry Breton, and his advisor on defence matters are French-speakers.
43In that connection, the French Republic disputes the relevance of the documents produced by the Commission in Annexes B1 to B5 to the defence in order to demonstrate the primacy of English within the Directorate-General for Defence Industry and Space. It states that, as is acknowledged by the Human Resources Correspondent of the Directorate-General for Defence Industry and Space in Annex B2, those documents do not provide language information on the speeches, legislation and specialist training referred to in Section 4.2.1 of the contested notice of competition. Those documents also fail to provide any language information, beyond the formal documents and briefings, concerning internal communication, meetings, communication with external stakeholders, inter-service consultations, inter-institutional communication and audit procedures also referred to in Section 4.2.1 of the contested notice of competition. In that regard, the French Republic disputes the distinction drawn by the Commission between formal and informal exchanges, which leads to the latter being excluded from the presentation of the use of languages within the Directorate-General for Defence Industry and Space. It therefore contends that the significant criterion is whether the use of a language has a professional purpose relating to duties performed within the Directorate-General for Defence Industry and Space, regardless of the level of formality of that exchange.
44In respect of Annex B3, the French Republic states that, out of 36057 documents listed, 15709 documents (over 40%), do not offer any language information, so it is not possible to know in which languages those documents have been drafted. It notes that the Commission’s assertion that the proportion of those documents that are drafted in English is the same as the proportion of documents where the language is indicated cannot be verified.
45In respect of Annex B5, the French Republic points out that 23 of the 29 vacancy notices – that is to say, a large majority of those notices – state that a command of the French language at least at a satisfactory level (B2) is required. It also points out that 4 other forms require a command of French at B1 level, which raises to 27 out of 29 the number of forms stating that some command of French is required. Therefore, since the restriction to English at issue does not ensure that successful candidates will have a command of French at the required level, it by no means ensures the recruitment of successful candidates who will be ‘immediately operational’ in respect of the jobs in question.
46Furthermore, the French Republic submits that both EPSO in the contested notice of competition, and the Commission in its defence, fail to demonstrate the existence of an actual link between exclusive use of the English language and the specific duties performed within the Directorate-General for Defence Industry and Space that are described in Annex I to the contested notice of competition, contrary to what is required by case-law.
47Thus, the French Republic maintains that it is apparent from Annex I to the contested notice of competition that successful candidates who will be recruited as administrators may be required to perform tasks that are not specific to the fields of the defence industry and space but are common to all EU policies. The French Republic contends that the cross-cutting nature of the competences needed to carry out such tasks justifies successful candidates in competitions having mobility from one directorate-general to another during the course of their careers.
48In that connection, the French Republic observes that EPSO has published notices of competition laying down language rules that are much less restrictive than those laid down in the contested notice of competition, although the duties which the successful candidates in those competitions might expect to be required to perform were not very different from those described in Annex I to the contested notice of competition. The French Republic observes that, all the same, it seems that a candidate who has passed one of those competitions and placed on a reserve list could, in principle, be recruited to the Directorate-General for Defence Industry and Space, and vice versa, so that the alleged ‘specificity’ of the staff of the Directorate-General for Defence Industry and Space does not appear to substantiate the restriction at issue. The French Republic also observes that the General Court has never annulled a notice of competition laying down such a language regime or a similar language regime and notes that Advocate General Sharpston pointed out the advantages offered by such rules in her Opinion in Spain v Parliament (C‑377/16, EU:C:2018:610).
49In addition, the French Republic contends that some of the duties described in Annex I to the contested notice of competition may be performed operationally in French by administrators in the Directorate-General for Defence Industry and Space due to the prevalence of French-speaking correspondents.
50The Commission disputes the arguments of the French Republic. It contends, accordingly, that the language restriction at issue complies with the requirements of the Court’s recent case-law, such as those resulting from the judgment of 8 September 2021, Spain v Commission (T‑554/19, not published, EU:T:2021:554). It is clear from that judgment that where the notice of competition lays down a restriction on the choice of language 2, that choice cannot relate to a language in respect of which that restriction is not justified. It is also clear from that judgment that the documents that must be provided in order to justify such a restriction are those which make it possible ‘to establish which language or languages are actually used by the services concerned in their day-to-day work, or even the language or languages that are essential for the performance of the duties referred to in the contested notice’. It is further clear from the abovementioned judgment that the Court may verify, on the basis of the documents provided by the institution in question, whether the use of a language demonstrates a ‘clear prevalence’, which leads to the consideration that its inclusion is justified, or ‘much smaller’ percentages, which would lead to the opposite conclusion.
51The Commission contends that it appears from the specific information given in Section 4.2.1 of the contested notice of competition, supported by the evidence it submitted before the Court, that a command of English is required in order to be immediately operational within the Directorate-General for Defence Industry and Space, and that is not the case for any of the other official EU languages.
52In support of that assertion, the Commission produces a table listing the languages of the documents produced and received by the Directorate-General for Defence Industry and Space over a period of a year preceding the publication of the contested notice of competition (Annex B3). It is clear from that table that, out of 36057 documents, 19949 are drafted in English, 399 in other languages or in several languages and 15709 have no language indicated in the computer system in which they are recorded. Among the languages other than English, French is the second most used language (186 documents), followed by German (70 documents), documents in several languages (57 documents) and Spanish (37 documents). According to the Commission, it is clear from the analysis of the documents in respect of which a language is indicated, which are the only ones relevant in the present case, that documents in English represent 98% of the documents, while documents in French represent 0.9%.
53The Commission also produces statistics on the languages of briefings prepared by the Directorate-General for Defence Industry and Space over the same period (Annex B4) which show that, out of the 431 briefings where the Directorate-General for Defence Industry and Space was the lead or contributed, 362 were drafted in English (84%) and 69 in French (16%).
54The Commission also produces vacancy notices at ‘non-managerial administrator’ level, published by the Directorate-General for Defence Industry and Space over the same period (Annex B5), with all the vacancy notices in question mentioning the language skills requiring a professional command of English. French is mentioned only in a few vacancy notices, sometimes only as an ‘advantage’. Moreover, reference to French in the vacancy notices is linked only to a failure to update the vacancy notice templates, and the units for which those notices were published work solely in English.
55The Commission adds that the language restriction at issue is required in order to avoid the reserve list being partly unusable, which would not be in the interest of the service. The Commission states, in fact, that, while a successful candidate could pass the competition without a command of English at B2 level, he or she could not be recruited to the Directorate-General for Defence Industry and Space, since recent vacancy notices for AD posts at the Directorate-General for Defence Industry and Space require a sufficiently good command of English. According to the Commission, contrary to what the French Republic claims, there is no point in allowing candidates to participate who would not be able to perform the relevant tasks due to their inadequate language skills.
56The Commission also replies to several of the French Republic’s arguments regarding the allegedly unjustified nature of the language restriction at issue.
57Thus, first, it does not deny that the restriction at issue excludes candidates whose spoken English is not at B2 level, but observes that there are few candidates who aspire to an international career without a command of English at B2 level, and that, moreover, even language rules including 24 languages would exclude candidates who did not have a command of two official EU languages at C1 and B2 levels respectively.
58Second, with regard to the French Republic’s argument that all the institutions will be able to draw from the reserve list, the Commission states that, while that possibility does exist, it is residual and is not in line with the objective of the contested notice of competition and cannot be used as a basis for the language rules of the competition, which must be justified in the light of the needs of the service. It contends also that a professional command of English is required for the vast majority of posts in the EU institutions.
59Third, with regard to the French Republic’s argument that French is widely used within the Directorate-General for Defence Industry and Space and some important posts are held by French-speakers, including that of Director-General, the Commission states that the fact of being capable of working in French does not mean that the working language is French. Thus, it is clear from Annex B4 that some of the persons for whom briefings are intended, who have French surnames, ask to be given those briefings in English. Similarly, the fact that the Director-General of the Directorate-General for Defence Industry and Space, a Finnish national, is fluent in French and can, if necessary, use it on occasion does not alter the fact that he works in English.
60Fourth, regarding the significant presence of French-speakers among the correspondents on the staff of the Directorate-General for Defence Industry and Space, the Commission submits that this may also allow occasional informal exchanges to take place on a bilateral basis between two French-speakers. That does not, however, have any impact on formal exchanges between the Directorate-General for Defence Industry and Space and its interlocutors. According to the Commission, the question is not whether a language, such as French, might be useful, but whether it is actually used in the work of the Directorate-General for Defence Industry and Space. Furthermore, case-law has expressly rejected attempts to justify inclusion of a language in the choice of language 2 of a competition on the ground of a command of that language by its interlocutors, considering that the information provided by Commission staff concerning the languages of which they had a command was irrelevant.
61Fifth, regarding the French Republic’s argument that the duties of the staff of the Directorate-General for Defence Industry and Space are not sufficiently specific to justify the restriction at issue, the Commission contends that the Directorate-General for Defence Industry and Space is a small, recently established service which has had only one Director-General since its creation and has therefore been able to work homogeneously in a single language from the outset. Moreover, according to the Commission, while in the past, notices of competition may have made provision for more languages, that does not mean necessarily that the services concerned were different from the Directorate-General for Defence Industry and Space from that point of view. That is confirmed by the judgments in which the Court of Justice and the General Court found that the Commission had not been able to demonstrate that officials in other services worked in languages other than English.
62Sixth, the Commission contends that the examples of notices of competition to which the French Republic refers are not relevant in the present case. Thus, it submits that notice of competition EPSO/AD/373/19 concerned a competition for generalists, intended for all the EU institutions, which had, moreover, been published before the most recent judgments that annulled notices of competition or board decisions based on notices of competition which included languages other than English. For its part, the notice of competition EPSO/AD/397/32 is a pilot competition and constitutes, at that stage, a one-off experience. Furthermore, the Commission submits that the language rules for those competitions cannot serve as a basis for comparison in an assessment of the proportionality of the restriction at issue, first, because a regime with 24 languages does not include any restriction and, secondly, because the French Republic has not shown how a regime with 5 languages would have been justified in the present case.
63Seventh, the Commission maintains that the French Republic’s argument that a successful candidate in a competition the language regime of which includes more languages could be recruited into the Directorate-General for Defence Industry and Space is speculative, since the Directorate-General for Defence Industry and Space seeks to recruit specialists and will, in any event, examine the level of their English when they are recruited. Moreover, there is no need for it to justify the difference in language rules between two competitions, especially when they have different objectives. The Commission adds that, while the language rules to which the French Republic refers have not been annulled, they have not been challenged either, and that the French Republic does not show that such rules are compatible with current case-law. In that regard, the Commission contends that, while case-law does not require it, in principle, to restrict the choice of the second language of the competition to English, the fact remains that, if the work is carried out mainly in English, it cannot include languages other than English among the languages to be chosen as language 2 of the competition and is, on the contrary, justified in limiting the choice of language 2 to English.
64Eighth, the Commission states that language rules including 24 official languages of the European Union would nevertheless exclude certain candidates due to the level of their knowledge of languages, according to Article 28(f) of the Staff Regulations, which, by requiring the command of a second language, seeks necessarily to bring about the emergence of one or more ‘vehicular’ languages within the services of the institutions.
65According to the Court of Justice’s case-law recalled in paragraphs 36 and 37 above, justification of a language restriction such as the language restriction at issue must relate to the duties that the persons recruited will be required to perform. In other words, in the present case, it is for the Commission to demonstrate that the duties described in the contested notice of competition require, in themselves, a command of English at B2 level.
66In the present case, it should be noted that the Commission does not link the need for the persons recruited to have a command of English at B2 level in order to be immediately operational to the particular duties those persons will be required to perform, but to the mere circumstance that those persons will have to perform those duties in services in which the current staff use mainly English in carrying out those duties.
67Such a line of argument, which amounts merely to saying that duties must be carried out in English because they are currently being carried out in that language, does not therefore, as a matter of principle, establish that the language restriction at issue is suitable for meeting the real needs of the service in respect of the duties which the persons recruited will be called upon to perform, as the case-law of the Court of Justice referred to in paragraph 36 above requires.
68Moreover, it should be noted that the Commission’s line of argument, which amounts to justifying the language restriction at issue on grounds of the existence of an alleged ‘established fact’ within the Directorate-General for Defence Industry and Space, is not consistent with the situation of the latter. It should be noted that the Directorate-General for Defence Industry and Space had been established only two and a half years before the publication of the contested notice of competition and that it was in the process of building up its staff, which is demonstrated moreover by the publication of the notice in question.
69In any event, it should be noted that the Commission’s line of argument is not adequately supported by the documents submitted to that effect before the Court.
70Thus, first, it is clear from the sworn statement of the ‘Human Resources Correspondent’ of the Directorate-General for Defence Industry and Space (Annex B2) that the statistics on the languages of the documents produced and received by that directorate-general (Annex B3) include all of the items mentioned in the fourth subparagraph of Section 4.2.1 of the contested notice of competition, with the notable exception of ‘speeches, legislation and specialist training’, which are, however, mentioned in that notice as being work carried out in English by the staff of the Directorate-General for Defence Industry and Space.
71Secondly, it should be noted that the table provided by the Commission in Annex B3 does not allow the nature of the documents in question to be identified, only the software used for their storage and their mode of transmission, and so it is not possible to check that those documents do in fact relate to the duties that will be performed by the persons recruited. On its own, the sworn statement of the ‘Human Resources Correspondent’ of the Directorate-General for Defence Industry and Space (Annex B2) in which she certifies that the table produced by the Commission relates to all of the items mentioned in Section 4.2.1 of the contested notice of competition, with the exception of speeches, legislation and specialist training, cannot offset the lack of precision of the table in question with regard to the nature of the examination of the evidence which the General Court is required to carry out according to the case-law recalled in paragraph 36 above.
72Furthermore, it is clear from the table in question that, out of a total of 36057 documents, 19949 documents were drafted in English while only 399 documents were drafted in another official EU language, of which, in particular, 186 were in French, 70 in German, 37 in Spanish, 5 in Italian, 4 in Dutch and 1 in Greek. Although those statistics do demonstrate a significant use of English, they cannot be considered to be definitively convincing since no language was recorded for 15709 documents. It should be stated in that regard that, contrary to what the Commission contends, the Court cannot simply presume that the relationship between the number of documents drafted in English and the number of documents drafted in other official EU languages, in the case of the documents in respect of which the language is recorded, is the same as regards the documents in respect of which the language is not recorded, since, according to the case-law recalled in paragraph 65 above, the burden of proof lies with the Commission.
73Thirdly, it is clear from the data provided by the Commission in Annex B4 that, of 431 briefings that were prepared in whole or in part by the Directorate-General for Defence Industry and Space, 362 were prepared in English (84%) and 69 in French (16%) (Annex B4). However, it should be noted that it is clear from the same data that, of the 362 briefings prepared in English, 316 were intended for a person whose mother tongue was French or a person who is known to speak French. In the absence of any evidence on the part of the Commission that the use of English in the context of those briefings was the result of the wishes of their intended recipients, or of special circumstances, it cannot be considered that those data demonstrate the need to have a command of English in the context of communication within the institution. Such data are, at most, solely sufficient to demonstrate that the Directorate-General for Defence Industry and Space mainly uses that language in the context of communication within the institution by choice and not in order to meet the real needs of the service. That conclusion is moreover confirmed by the Commission’s argument that the Director-General of the Directorate-General for Defence Industry and Space does speak French, but works only in English.
74Fourthly, regarding the vacancy notices produced by the Commission, it should be noted from the outset that such documents do not, in themselves, demonstrate actual use of a language within the Commission services. However, they may shed light on the needs of the service as identified by an institution. In the present case, it must be stated, as the French Republic has done, that of the 29 vacancy notices, 27 mention the need, in addition to a professional command of English, for a knowledge of French to varying degrees. Thus, by way of an example, a notice dated 23 June 2021 mentions the requirement of a command of French at C2 level (Annex B5, page 40). Another notice dated 7 July 2021 mentions the fact that French, like English, is a working language of the unit to which the vacancy notice relates (Annex B5, page 43). A notice dated 1 November 2021 mentions the requirement, in addition to a command of English at C1 level, of a command of French at C1 or B2 level (Annex B5, page 47). A notice dated 26 October 2021 mentions the requirement of a good knowledge of English and ideally of French (Annex B5, page 70). Another notice dated 29 November 2021 states that the working languages are English and French (Annex B5, page 57). The same applies in a notice dated 14 October 2021 (Annex B5, page 64) and another notice published on 7 February 2022 (Annex B5, page 121). Vacancy notices published in the course of 2022 note the requirement of a good knowledge of English and preferably French (Annex B5, pages 128, 177, 205 and 232), a very good command of English and French (Annex B5, page 212) or a command, in addition to English C1 level, of French at B2 level (Annex B5, pages 131, 138, 159, 166, 194, 208, 222 and 229) or C1 level (Annex B5, pages 124, 180 and 215) even a command of English and French at C2 level (Annex B5, pages 117 and 188). While a reading of those documents confirms that the Directorate-General for Defence Industry and Space considered from the outset that a command of English was necessary in order to perform various duties within it, it also confirms that until the publication of the notice of competition at issue, it was not the only language regarded as useful, even necessary, for performing those duties, to such an extent that it was able to state in some of those notices that English and French were the working languages.
75The argument put forward by the Commission that the mention of French in the language requirements of those vacancy notices resulted from a problem updating the templates for those notices is unconvincing, given the diversity of the notices in question and the differences between the levels of the command of French required in the various notices. In addition, that argument is not corroborated, since the Commission has neither claimed nor demonstrated that those notices were removed or corrected in any way.
76It should be stated that the Commission did not provide any evidence concerning the use of English in ‘analytical work, internal communication and meetings, communication with external stakeholders, drafting reports, briefings, speeches and legislation, preparing publications, for performing other duties mentioned in Annex I as well as for taking part in specialist training courses’. The same applies moreover with regard to ‘inter-service consultations, inter-institutional communication and the audit procedures’.
77It is clear from the considerations set out in paragraphs 65 to 75 above that the Commission has failed to demonstrate that the language restriction at issue was justified within the meaning of the case-law cited in paragraph 36 above.
The proportionality of the language restriction at issue
78According to the French Republic, neither EPSO in the contested notice of competition, nor the Commission, has established how the restriction at issue is proportionate to the objective that successful candidates in the competition should be immediately operational.
79In that regard, the French Republic and the Kingdom of Belgium, the Hellenic Republic and the Italian Republic submit that, while the objective of recruiting officials who are immediately operational is likely to fall within the real needs of the service, the same applies regarding the objective of protecting the linguistic diversity of the European Union and of recruiting staff with a variety of language profiles due to the variety of tasks and the diversity of contacts involved in the action of the European Union. The need for EU officials to be able, through a reasonable command of the language of the Member State which hosts the headquarters of the institution, body, office or agency in which they work, to become integrated within that State, also falls within the real needs of the service.
80In addition, according to the French Republic, there are three reasons why the objective of recruiting successful candidates from a competition who are immediately operational needs to be qualified. First of all, 50% of successful candidates in competitions for specialist administrators are still on the reserve lists 6 months after publication of the results, and that proportion is 35%, 12 months after the results are published. Next, the successful candidates from competitions will have an opportunity to undertake language training before and after they are recruited. Lastly, those successful candidates will be expected to spend several years in the EU civil service and occupy various posts likely to present a variety of language requirements. Recruitment should not therefore take into account the language requirements for their first job or trap them from the outset in a practice that promotes monolingualism.
81EPSO should therefore have weighed up those different objectives so as to prioritise language rules that placed minimum restrictions on the recruitment of a variety of language profiles, which was not so in the present case.
82The French Republic rejects, moreover, the Commission’s argument that successful candidates who do not have a command of English at B2 level have no chance of being recruited, which renders the reserve list partly unusable. Thus, first, at least 10% of successful candidates in competitions for specialist administrators placed on reserve lists are ultimately never recruited, either by choice or because they have not had a successful job interview within the time limit set or have not received a suitable job offer. In those circumstances, it is even less justified to apply language rules as restrictive as those in the contested notice of competition from the first stage of the recruitment process. Secondly, it is reasonable to consider that most of the candidates have a command of English at B2 level, as the Commission accepts, which limits the risk of obtaining an unusable reserve list. Furthermore, it is for successful candidates who have taken the risk of sitting the competition without a command of English at that level to bear the relevant consequences.
83The Commission contends that the language restriction at issue is proportionate to the needs of the service. According to the Commission, that restriction is commensurate with the objective pursued and there are no other less restrictive possibilities, since the inclusion of official EU languages other than English was not consistent with the case-law of the General Court. The French Republic did not moreover explain what other language rules corresponding to the needs of the service could have been laid down in the contested notice of competition. The Commission adds that English is the most studied foreign language in Europe and that it is reasonable to expect anyone seeking to enter upon an international career to acquire B2 level English before sitting the competition. The Civil Service Tribunal held, moreover, in the judgment of 29 June 2011, Angioi v Commission (F‑7/07, EU:F:2011:97), that, by requiring only one language and not a specific combination of languages, a call for expression of interest had complied with the principle of proportionality.
84In response to the French Republic’s argument that, first, it is necessary to qualify the objective of recruiting successful candidates from competitions who are immediately operational, since not all successful candidates are recruited immediately and, secondly, that those successful candidates will have an opportunity to undertake language training, the Commission contends that, if account were to be taken of the opportunity for candidates to build on their competences after the competition, that would defeat the object of organising a competition, the aim of which is to select the best candidates.
85The Commission also disputes the French Republic’s argument that the language rules laid down in the contested notice of competition takes account only of the language requirements relating to the initial duties that successful candidates in that competition will be called upon to perform and trap them in a practice that promotes monolingualism. According to the Commission, the language rules laid down in the contested notice of competition do not preclude the recruitment of successful candidates who speak other languages besides English, and, similarly, they do not preclude such persons using those other languages during informal exchanges after they have been recruited.
86As regards the French Republic’s argument that it would have been wiser to reduce the number of languages involved in the choice of language 2 gradually rather than going from 24 languages to just one, the Commission maintains that such a reduction does not correspond to the current state of the law, with case-law requiring justification for any language restriction and censuring the inclusion of any other language where it cannot be proved that it is required in order to carry out tasks.
87As regards the French Republic’s argument that it did not weigh up various interests, the Commission points out that the main purpose of a competition is to select candidates for recruitment.
88According to the case-law recalled in paragraph 36 above, 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 restriction is indeed appropriate for the purpose of meeting the real needs relating to the duties that the persons recruited will be required to perform, and that it is proportionate to those needs.
89It is also clear from the case-law that it is a matter for the institutions to weigh up the legitimate objective justifying the limitation of the number of languages of the competitions against the opportunities for recruited officials to learn, within the institutions, the languages necessary in the interest of the service (judgment of 27 November 2012, Italy v Commission, C‑566/10 P, EU:C:2012:752, paragraph 97).
90In the present case, the Commission does not contend that it did such weighing up, but merely, first, maintains that there were no other solutions less restrictive of the language regime laid down in the contested notice of competition, since the inclusion of a language other than English would not have complied with the case-law of the Court, in view of the prevalence of English in the directorate-generals concerned and, secondly, refers to paragraphs 98 and 99 of the judgment of 29 June 2011, Angioi v Commission (F‑7/07, EU:F:2011:97).
91However, first, as the Court held in paragraph 77 above, the Commission cannot maintain that the restriction of language 2 of the competition solely to the English language complied with case-law.
92Secondly, it should be pointed out, as the French Republic has done, that in paragraphs 98 and 99 of the judgment of 29 June 2011, Angioi v Commission (F‑7/07, EU:F:2011:97), the Civil Service Tribunal did not rule on whether EU law allowed a notice of competition to restrict certain tests to a single language, as is laid down in the language rules of the contested notice of competition, but held that the restriction of the choice of language 2 of the competition to the three languages of internal communication, although a candidate had chosen a language of internal communication as his or her first language, was proportionate to the objective pursued in that case by EPSO.
93Therefore, it must be concluded that the Commission has failed to demonstrate that the language restriction at issue was proportionate to the needs of the service within the meaning of the case-law recalled in paragraph 29 above.
94In the light of the above considerations, the French Republic’s first plea in law must be upheld.
95In view of the foregoing, the contested notice of competition must be annulled, without there being any need to examine the French Republic’s other pleas.
Costs
96Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the French Republic, as applied for by the latter.
97Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Belgium, the Hellenic Republic and the Italian Republic must therefore bear their own costs.
Operative part
On those grounds,THE GENERAL COURT (Sixth Chamber)hereby:
1.Annuls the notice of open competition EPSO/AD/400/22 entitled ‘Administrators (AD 7) and experts (AD 9) in the fields of defence industry and space’;
2.Orders the European Commission to bear its own costs and to pay those incurred by the French Republic;
3.Orders the Kingdom of Belgium, the Hellenic Republic and the Italian Republic to bear their own costs.
Delivered in open court in Luxembourg on 8 May 2024.
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