Strasbourg, 4 May 2007

Dear Mr M.,

On 22 September 2005, the Association of Graduates of the Polish National School of Public Administration (the "Association"), at that time represented by Mr Piotr Kulpa, made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO").

On 25 October 2005, I forwarded the complaint to the Director of EPSO.

On 7 November 2005, the Association clarified the allegation and claim and, on 7 December 2005, I informed EPSO accordingly.

On 31 January 2006, EPSO sent an opinion in French and, on 7 February 2006, its translation into English, which I forwarded to the Association with an invitation to make observations.

On 17 March 2006, the Association sent me its observations.

On 27 July 2006, in reply to its e-mail of 23 July 2006, I informed the Association about the status of its complaint.

By letter of 7 August 2006, I asked EPSO for further information concerning the complaint.

On 25 September 2006, I received the Association's comments on my above-mentioned letter of 7 August 2006.

On 5 October 2006, EPSO replied to my request for further information in French and, on 13 October 2006, it sent the translation of its reply into English, which I forwarded to the Association for observations.

On 6 November 2006, the Association sent me its comments on EPSO's above-mentioned reply to my request for further information.

On 22 February 2007, I asked EPSO for additional information, and, on 6 March 2007, I sent the Association a copy of my letter to EPSO.

EPSO replied on 14 Mars 2007 and on 26 March 2007, it sent the translation of its reply into English. A copy of that reply and its translation into English was sent to the Association on 26 March 2007.

On 2 April 2007, the Association sent its comments on the above reply.

I am now writing to inform you of the results of the inquiries that have been made.

THE COMPLAINT

The complainant is the Association of Graduates of the Polish National School of Public Administration.

The facts according to the complainant can be summarised as follows.

The complaint concerns two groups of open competitions that were published after 1 May 2004.

The first group, Open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05, was designed to recruit officials who were citizens of the new Member States(1). The notices of competition required: (i) a thorough knowledge of one of the official languages of the 10 new Member States as well as a satisfactory knowledge of one of the 11 official languages of the old Member States(2); (ii) that the pre-selection tests be taken in English, French or German; and (iii) that the written and oral tests be taken in any one of the 11 official languages of the old Member States.

The second group, Open Competitions EPSO/AD/25-29/05, was designed to recruit officials having knowledge of one of the 11 official languages of the old Member States. The notices of competition required: (i) a thorough knowledge of one of the 11 official languages of the old Member States and a satisfactory knowledge of another of the 11 official languages of the old Member States; and (ii) that the pre-selection tests be taken in the candidates' second language, while the written and oral tests would be held in the candidates’ main language.

The complainant’s analysis of the above requirements was that knowledge of an official language of the old Member States was granted privileged status, whereas knowledge of an official language of the new Member States was not. Moreover, the complainant considered that candidates who have one of the 11 official languages of the old Member States as their main language were in a privileged position because, in the first stage of the competition (the pre-selection stage), they had a greater choice of languages and, in the second stage of the competition, they were allowed to take the written and oral tests in their main language. In contrast, candidates whose main language was an official language of one of the 10 new Member States were not allowed to take those tests in one of the official languages of the 10 new Member States.

On 19 July 2005, the complainant sent a letter containing the above comments to the Director of EPSO. The complainant stated that, as far as it is aware, the only temporary exemptions from the normal requirements for the recruitment of officials of the European Communities were provided for by Council Regulation (EC, EURATOM) 401/2004 of 23 February 2004 introducing, on the occasion of the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, special temporary measures for the recruitment of officials of the European Communities(3) ("Regulation 401/2004"). While this temporary exemption constitutes a derogation from Article 4, paragraphs 2 and 3; Article 7(1); Article 27; and Article 29(1), points (a), (b) and (c) of the Staff Regulations(4), the remainder of the Staff Regulations continues to apply. In particular, Article 5(5)(5) and Article 28(f)(6) of the Staff Regulations should still apply. The complainant also referred to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the EEC, which, according to the amendments made by the Accession Treaty 2003, states that the official languages of the institutions of the European Union shall be Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish. The complainant took the view that EPSO's linguistic requirements give rise to unequal treatment for citizens from new Member States who wish to work for the European institutions and that these requirements are not in conformity with Article 12 of the EC Treaty. The complainant therefore asked EPSO for an explanation as to the legal basis justifying such a differentiation.

On 30 August 2005, EPSO sent its reply a copy of which teh complainant attached to its complaint.. In that reply, EPSO refused to acknowledge that any discrimination had occurred. As regards the differences in the linguistic regimes which applied to different competitions, EPSO stated in summary the following.. First, EPSO explained the difference between selection procedures, on the one hand, and recruitment procedures, on the other. The open competitions organised by EPSO have the objective of selecting the best candidates and placing them on a reserve list. At the selection stage, the candidates retained are being identified as potential staff members of the institutions. However, they have not yet been "recruited". Rather, as a result of having been selected, they have the possibility, but not the right, to be recruited. It is only when an institution offers a selected candidate a specific post, and such an offer is accepted, that the candidate is deemed to be "recruited". EPSO also pointed out that Article 5(5) of the Staff Regulations stipulates that identical conditions of recruitment and of "service career" shall apply to all officials belonging to the same function group. Selected candidates are recruited under identical conditions, irrespective of whether they have been selected from a reserve list limited to citizens of the new Member States, or from a reserve list drawn up following a competition which has as a requirement that the main language of candidates is one of the 11 official languages of the old Member States. Thus, EPSO argued that Regulation 401/2004 does not provide for a derogation from Article 5(5) of the Staff Regulations since no derogation was needed.

EPSO also stated that Article 28(f) of the Staff Regulations stipulates that a person can only be appointed as an official if he/she "produces evidence of a thorough knowledge of one of the official languages of the Communities and of a satisfactory knowledge of another official language to the extent necessary for the performance of his duties." EPSO noted, in this regard, that Article 28(f) of the Staff Regulations merely sets out a minimum requirement. It states that the person must demonstrate knowledge of two of the official languages, but it does not grant a right to choose from any of the official languages. Where the performance of duties, or the requirements as regards internal communication, so require, the institutions have the right to require knowledge of additional languages and/or knowledge of specific languages.

Finally, EPSO pointed out that the linguistic requirements for Open Competitions EPSO/AD/25-29/05 are based on Regulation 401/2004, article 2 of which states that "until 31 December 2010, general competitions shall also be held for the recruitment of officials having one of the 11 official languages of the old Member States as their main language." Hence, all applicants for Open Competition EPSO/AD/25-29/05 were, irrespective of their citizenship, required to have one of the 11 official languages of the old Member States as their main language. Furthermore, candidates in competitions conducted in the 11 official languages of the old Member States cannot be deemed to be in a privileged position as regards the written and oral phases of the competition compared to candidates for competitions targeting the new Member States because these two groups of candidates never compete in the same competition in order to be placed on a reserve list. All candidates competing to be placed on the same reserve list are always subject to exactly the same rules and requirements.

The complainant did not agree with EPSO's arguments and therefore lodged a complaint with the European Ombudsman on 22 September 2005.

On 7 November 2005, the complainant clarified its allegation and claim.

The complainant alleged that EPSO discriminated against the citizens from the new Member States through its linguistic requirements and that these requirements favour citizens who have one of the 11 official languages of the old Member States as their main language.

The complainant claimed that tests for competitions should be held with due regard for the principle of equal treatment for all candidates irrespective of their country of origin, and that open competitions for both old and new Member States should be held on the same terms.

In the complainant's view, tests for competitions would comply with the applicable rules if: (i) the tests were held in the candidates' mother tongue; or (ii) candidates could choose in which language, amongst all the official Community languages, they wish to sit the tests; or (iii) the tests were held in one of the working languages of the EU (English, French, and German). In addition to the above suggestions, the complainant suggested that if some candidates are not allowed to take the tests in their mother tongue, all candidates should be required to sit tests in their second language.

The complainant also stated that it does not want to impose a fixed linguistic regime on EPSO, or on any other EU institution, but expects that equality of treatment will be ensured as regards access to posts in Community institutions and bodies.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows:

The legal basis for the linguistic requirements set out in the notices of competition published from 1 May 2004 for the recruitment of citizens of one of the new Member States is Regulation 401/2004.

Regulation 401/2004 lays down special measures for the recruitment of officials of the Communities on the accession in 2004 of ten new Member States. According to point (3) of the preamble of Regulation 401/2004, which refers to the exceptional nature of the accession of the ten new Member States, and also to Article 2 of that Regulation, competitions must also be held, up to 31 December 2010, for the recruitment of officials having as their main language one of the 11 official languages of the old Member States. The purpose of these rules is, according to EPSO, to comply with Article 27 of the Staff Regulations, which provides that officials should be recruited on the broadest possible geographical basis.

EPSO takes the view that special temporary measures, as introduced in Regulation 401/2004, which derogate from the Staff Regulations, reflect legitimate objectives of general interest as regards staff policy. Therefore, the terms under which such competitions are organised do not constitute maladministration.

Furthermore, the eligibility requirements as regards the knowledge of languages derive from Regulation 401/2004, which stipulates that vacant posts can be filled by nationals from the new Member States whose main language is one of the official languages of the 10 new Member States and, at the same time, open competitions may be held for candidates whose main language must be one of the 11 official languages of the old Member States.

EPSO reiterated that, in any event, discrimination or unfair treatment could not be alleged on the basis of a comparison of one notice of competition with another, since each competition has its own objectives.

The complainant's observations

In summary, the complainant contested EPSO's view that Regulation 401/2004 constitutes an adequate legal basis for its decisions on linguistic requirements applied in open competitions.

According to the complainant, the derogation from the second and third paragraphs of Article 4, from Article 7(1), from the third paragraph of Article 27(7), and from points (a), (b) and (c) of Article 29(1)(8) of the Staff Regulations, which are provided for in Article 1 of Regulation 401/2004, apply only as regards the recruitment of nationals from the new Member States.

Article 2 of Regulation 401/2004 can only constitute the legal basis for the organisation of the recruitment of officials having one of the 11 official languages of the old Member States as their main language. This article cannot, however, constitute the legal basis for any derogation from Article 27, nor from any other provision of the Staff Regulations.

The complainant concluded, therefore, that the competitions for the recruitment of officials having one of the 11 official languages of the old Member States as their main language should be organised in a way that assures identical treatment of all candidates, also as far as linguistic requirements are concerned. Regulation 401/2004 cannot be invoked as a legal basis for any unequal treatment.

Furthermore, the complainant refers to the Agreement between the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, and the Secretary-General of the Court of Auditors, on the common principles for a shared selection and recruitment policy and the principles for managing reserve lists. Point 1.2 of the Agreement provides that:

"[a]pplicants must know one official language other than their native language, but they shall be informed that, for some positions, specific language qualifications may be required within the framework of the procedure for recruiting from reserve lists and that each institution will consequently be recruiting on the basis of its own requirements regarding language and other skills. To ensure transparency, where some institutions have particular language preferences in relation to certain posts, these must be clearly indicated to applicants before they submit their applications."

The complainant argued, therefore, that it can understand that specific linguistic requirements may be imposed in the framework of Open Competition EPSO/AST/4/05, which was aimed at recruiting French-language secretaries. However, the above provision of the Agreement does not allow for different treatment as regards languages in the framework of open competitions for the same AD or AST function group.

The complainant considered, therefore, that EPSO's reference to the legitimate objectives of general interest in the context of staff policy was in contradiction with the Agreement and appeared not to have a legal basis.

Finally, the complainant did not agree, in the context of the present case, with EPSO's argument that "discrimination or unfair treatment could not be alleged on the basis of a comparison of one notice of competition with another since each competition has its own objectives." In the complainant's view, competitions cannot have objectives other than the objectives that are permitted in accordance with binding legal provisions. Competitions cannot contradict these objectives. However, the examples of competitions referred to by the complainant appear to have the same objective, namely, "to draw up reserve lists from which to fill vacant posts in the institutions of the EU."

The complainant concluded that while it appears that EPSO recognised that different linguistic requirements are applied in its competitions to recruit staff from the old and the new Member States, there is no legal basis for different language requirements. This is the case because Regulation 401/2004 cannot derogate from Article 12 of the EC Treaty, which provides that "any discrimination on grounds of nationality shall be prohibited." Therefore, the complainant maintained its view that linguistic requirements in the relevant competitions introduce a clear distinction and divergent levels of difficulty for citizens from old and new Member States.

Further inquiries

After careful consideration of the Commission's opinion and the observations of the complainants, it appeared that further inquiries were necessary.

The Ombudsman's letter to EPSO dated 7 August 2006

The Ombudsman's letter may be summarised as follows.

The Ombudsman noted that EPSO organised competitions with more demanding linguistic requirements for citizens of new Member States than for citizens of old Member States. In order to deal with the question of whether EPSO exceeded the legitimate bounds of its discretion by establishing therefore direct or indirect differences of treatment between candidates in the different competitions in question which are disproportionate in relation to the objectives of Regulation 401/2004, the Ombudsman asked EPSO to explain what the justification was for organising competitions which require citizens of the new Member States to know English, French or German, when, in the context of other competitions, citizens were not required to know one of these languages.

A copy of the Ombudsman's letter to EPSO was sent to the complainant.

The complainant's letter to the Ombudsman dated 23 September 2006

In its letter the complainant commented on the Ombudsman's above letter of 7 August 2006, and clarified some points related to its complaint. The complainant's letter may be summarised as follows:

The complainant clarified its original allegation. In sum, it took the view that the languages of the new Member States are not recognised as a second language for candidates participating in the competitions.

The complainant did not agree with EPSO's view that Regulation 401/2004 permitted EPSO to adopt its current language regime. In the complainant's view, this language regime, because of the higher linguistic requirements it imposed on citizens from the new Member States, is discriminatory. The complainant pointed out that Regulation 401/2004 derogates from a number of precisely identified articles of the Staff Regulations. The Regulation does not derogate from Article 28(f) of the Staff Regulations, which gives general conditions regarding linguistic requirements. Article 28(f) of the Staff Regulations states that an official may only be appointed if he has produced evidence of possessing "a thorough knowledge of one of the official languages of the Communities and a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of duties." There is no legal basis for allowing for open competitions which introduce differences for nationals of any specific Member States as regards either linguistic requirements, or the level of difficulty concerning linguistic requirements.

In addition, the complainant pointed out that Article 1(f) of Annex III of the Staff Regulations stipulates that the knowledge of languages required in view of the special nature of the posts to be filled should be specified in the notice of competition. In the notice of competitions in question, that is, for the citizens from the new Member States, such information was not included. In this regard, the complainant pointed out that Article 7, paragraph 1, of Annex III of the Staff Regulations states that "[t]he institutions shall (...) entrust the European Personnel Selection Office (...) with responsibility for taking the necessary measures to ensure that uniform standards are applied in the selection procedures for officials of the Communities (...)".

The complainant also informed the Ombudsman that it had just received document SEC(2004)254(9) from EPSO. The complainant quoted the following part of that document:

"It is useful to recall that the EPSO management board decided on 10 March 2003 that, for one year, recruitment competitions for nationals from the acceding countries would be held in three languages - English, French and German. The objective was to ensure that these competitions would lead within a reasonable time to the establishment of reserve lists of successful candidates from these countries (...) The long-term objective must obviously be to ensure that the language regime used is the same for nationals of all 25 Member States. However, for practical reasons EPSO suggests two approaches to the organisation of competitions to be organised in the near future, continuing the distinction between competitions for nationals of the new Member States and those mainly aimed at nationals of the current Member States(...) Considering the logistic constraints imposed by the use of a larger number of new languages as well as the unavailability of the necessary resources that would be needed to translate the examination papers into the ten new languages, EPSO proposes to extend the current language regime used in competitions reserved for nationals from acceding countries."

As regards EPSO's proposal to conduct, in English, French or German, the main part of the competitions for the candidates having one of the 11 languages of the old Member States as their main language, the complainant also quoted another part of the same document, which stated that: "the Commission's representative on the EPSO Management Board should take the position that the current language regime for competitions in the present 11 languages should remain unchanged" and "[w]hile such an approach would doubtlessly reduce the amount of administrative resources necessary for the organisation of recruitment competitions, there is no other apparent justification for such an approach. Moreover, the Commission has always underlined the importance of multilingualism."

The complainant first took the view that the above-quoted document cannot constitute the legal basis for EPSO's linguistic requirements since it has no legal value.

He went on to point out that, on the date when the document was issued, Regulation 401/2004 had already been adopted. However, Regulation 401/2004 was not quoted in this document as constituting the legal basis for the "practical special and temporary linguistic regime".

The complainant next argued that the explanations provided in the above-quoted document indicate that there are two groups of languages: some which are worthy of being acknowledged and others which are not worthy of being acknowledged. In this regard, the complainant stated that such a situation is unjust and cannot be accepted.

Finally, the complainant stated that, in light of the above-quoted document, the explanations given by EPSO to the Ombudsman in the course of his inquiry on the present complaint are not consistent. The complainant emphasised that, although the Appointing Authority enjoys wide discretion when deciding upon the level of ability required for posts, this discretion is not unlimited. On this specific point, the complainant referred to the relevant case-law(10).

The complainant also referred to the historical background of the competitions organised following the successive enlargements. It pointed out that, in prior post-enlargement competitions, candidates sat all the tests in their main language and, in addition, sat a special test to assess their "satisfactory knowledge" of another official language of the Communities. "Satisfactory knowledge" was adjudged in accordance with the level necessary for the performance of their duties. This special test was, just before the 2004 enlargement, replaced by pre-selection tests in the candidates' second language. This regime of pre-selection tests continues to be applied to the candidates from old Member States. The complainant stated, in this regard, that the tests for candidates from the old Member States are prepared in the 11 official languages of the old Member States and that, when one of these official languages is not known to members of Selection Boards, the test papers are translated. At the stage of the oral tests, a translation service is provided in order to guarantee equal treatment. Finally, the complainant pointed out that the competitions organised after the third and fourth enlargements for citizens of the (then) new Member States and the (then) old Member States were also organised on the basis of regulations introducing special measures (Regulation 3517/85 and Regulation 626/95). However, the linguistic requirements were the same for all the candidates. The different treatment concerned the fact that the candidates from the (then) new Member States could participate in the competitions organised exclusively for them, while any other competitions were organised exclusively for the candidates from the (then) old Member States.

EPSO's reply to the Ombudsman's letter of 7 August 2006

In summary, EPSO stated that, in order to ensure good communication within the European institutions and to enable work to be carried out within reasonable time-frames, it is imperative to use the working languages of these institutions. For that reason, EPSO's Management Board decided on 25 July 2002 that the post-2004 enlargement competitions for the new Member States would be held in three languages only, namely, in English, French, and German.

Subsequently, the same Management Board decided that the language requirements concerning English, French, and German would also apply to the competitions for contractual staff which were published in June 2005 and were open to the citizens of all 25 Member States. It was agreed that, in order to ensure equal treatment and comply with Article 28(f) of the Staff Regulations, all candidates would sit their tests in a language other than their first language.

Lastly, the Management Board also approved the language requirements for new competitions/selection processes to be organised in the near future, including the competitions for assistants (AST1) in the secretarial field published on 26 June 2006. These competitions aim to recruit both candidates with a thorough knowledge of one of the old languages and candidates with a thorough knowledge of one of the new languages. The candidates in these competitions had to sit the pre-selection tests in their second language (that is, in English, French or German). This meant that all candidates are in the same position at the time of the tests.

EPSO pointed out that the language requirements for competitions were approved for a period limited to one year and that the results of these competitions will be analysed by EPSO.

EPSO also attached to its comments a copy of the Commission's Communication of 22 November 2005 on a new framework strategy for multilingualism (COM(2005)596 final), and explained that this Communication shows that English, French, and German are the three languages that are most commonly used as foreign languages in the EU.

The complainant's comment on EPSO's reply of 7 August 2007

The complainant stated that, apart from its observations in its letter to the Ombudsman of 23 September 2006, it had no specific observations to make on EPSO's reply. It also expressed its hope that the Ombudsman's analysis of its complaint would help EPSO and its Management Board to bring their policy into line with the general principles of the European Union.

The Ombudsman's letter to EPSO dated 22 February 2007

The Ombudsman's letter concerned Open Competitions EPSO/AD/25-29/05 for the recruitment of officials having as their main language one of the 11 official languages of the old Member States and EPSO's explanation of 5 October 2006 that, in summary, Regulation 401/2004 constitutes a valid legal basis for these competitions.

The Ombudsman noted that candidates in Open Competitions EPSO/AD/25-29/05 are required to demonstrate (a) a thorough knowledge of one of the 11 official languages of the old Member States as their main language, and, in addition, (b) a satisfactory knowledge of one of the official languages of the old Member States as their second language. The Ombudsman also noted that Regulation 401/2004 does not appear to provide a specific legal basis for the requirement that candidates demonstrate a satisfactory knowledge of one of the official languages of the old Member States as their second language, insofar as Article 2 of the Regulation merely states that "[u]ntil 31 December 2010, general competitions shall also be held for the recruitment of officials having one of the existing 11 official languages as their main language." (emphasis added).

The Ombudsman further noted that this additional language requirement appears to derogate from Article 28(f) of the Staff Regulations, which states that an official may be appointed if he demonstrates a satisfactory knowledge of another language "of the Communities to the extent necessary for the performance of his duties."

In light of the above, the Ombudsman asked EPSO to explain why knowledge of one of these 11 languages as a second language could be necessary for the performance of candidates' future duties, whilst knowledge of one of the official 10 languages of the new Member States could not.

EPSO's reply to the Ombudsman's letter of 22 February 2006

EPSO's reply may be summarised as follows:

The purpose of EPSO's work is to secure for the institutions the services of officials of the highest standard of ability with respect to the tasks they will be asked to perform. Under the Staff Regulations, the language skills constitute a necessary requirement in view of the tasks to be performed. In this context, EPSO noted that the competitions are launched to meet the needs of the institutions and not to create employment opportunities for European citizens. This is why, in practice, Article 28(f) of the Staff Regulations cannot be interpreted to mean that there is a principle of equality between languages under all circumstances inside the European union (EPSO referred to the judgment in case C-361/01 Kik v OHIM).

On the contrary, the institutions may adopt specific language arrangements in view of the requirements of the work of the administration. Such requirements include the need to ensure good communication within the European institutions and enabling work to be carried out within reasonable time-frames.

Regarding the competitions in question, the Appointing Authority decided that knowledge of one of the 11 languages was better suited to the realities of the administrative organisation of the institutions during the transitional period defined by Regulation 401/2004.

Furthermore, the Appointing Authority has broad discretion in deciding on the criteria of ability required for the posts that are to be filled and in determining, in the light of these criteria and in the interests of the service, the admissibility conditions for competitions. The Appointing Authority exercised this power when launching competitions to recruit candidates from the 10 countries that recently joined the European Union and when deciding that candidates should have a sufficient knowledge of one of the languages of the countries that were already members of the Union.

The complainant's comments on EPSO's reply of 14 March 2007

As regards the judgement in case C-361/01 Kik v OHIM referred to by EPSO in its reply, the complainant pointed out that the Court held that one Council Regulation adopted on the basis of Article 290 of the Treaty may be modified by another Council Regulation. The Court did not give unlimited discretionary power to the Appointing Authority which would contradict a Council Regulation. The complainant reiterated that, apart from its observations in its letter to the Ombudsman of 23 September 2006, it had no other specific observations to make on EPSO's reply.

THE DECISION

1 Linguistic requirements in Open Competitions organised in accordance with Regulation 401/2004
Factual background of the complaint

1.1 After the enlargement of the European Union to include 10 new Member States(11) on 1 May 2004, EPSO organised, in parallel, a series of open competitions to recruit administrators for the European institutions. The competitions were organised under Council Regulation (EC, EURATOM) 401/2004 of 23 February 2004 introducing, on the occasion of the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, special temporary measures for the recruitment of officials of the European Communities(12) ("Regulation 401/2004"). There were (i) competitions to recruit officials amongst citizens from the 10 new Member States ("the new Member States competitions")(13), and (ii) competitions to recruit officials having one of the 11 languages of the old Member States(14) as their main language(15). Citizens from both the old and new Member States could participate in the latter series of competitions.

The competitions in question had the following linguistic requirements:

The competitions organised for nationals of the new Member States (EPSO/AD/ 23/05, EPSO/AD/24/05 and EPSO/AD/4/04) had as requirements that candidates demonstrate a thorough knowledge of one of the 10 languages of the new Member States (as their main language) and a satisfactory knowledge of one of the 11 languages of the old Member States (as their second language)(16). The candidates had to take pre-selection tests in English, French or German. They could take the written tests in any of the 11 official languages of the old Member States. In open competitions EPSO/AD/23/05 and EPSO/AD/24/05, the candidates only took oral tests in their main language(17). In open competition EPSO/AD/4/04, candidates had to produce a short memo in their main language (written test "e"), if they successfully passed the other written tests (these other written tests were taken in their second language).

Open Competitions EPSO/AD/25-29/05 had as requirements that candidates demonstrate a thorough knowledge of one of the 11 languages of the old Member States (as their main language) and a satisfactory knowledge of another one of the same 11 languages (as their second language). The candidates had to take the written tests in their main language and the pre-selection tests in their second language.

The complainant's allegations and claim

The complainant alleged that EPSO is discriminating against nationals of the new Member States through the imposition of such linguistic requirements, and that these requirements favour citizens who have one of the 11 official languages of the old Member States as their main language.

The complainant claimed that tests for competitions should be held with due regard for the principle of equal treatment for all candidates independently of their country of origin and that open competitions for both old and new Member States should be held on the same terms.

In the complainant's view, tests for competitions will comply with the applicable rules only if: (i) the tests are held in the candidates' mother tongue; or (ii) candidates can choose in which language, amongst all the official Community languages, they wish to sit the tests; or (iii) the tests are held in one of the working languages of the EU (English, French, and German). In addition, the complainant suggested that if some candidates are not allowed to take the tests in their mother tongue, all candidates should be required to sit tests in their second language.

EPSO's opinion

1.2 In the opinion on the complaint, EPSO took the view that each competition has its own objectives and, therefore, discrimination or unfair treatment could not be alleged on the basis of a comparison of one notice of competition with another notice of competition.

EPSO pointed out that Regulation 401/2004 ("Regulation 401/2004") constitutes the legal basis for the competitions in question.

The extension of the complainant's original allegation

1.3 In its further letter of 23 September 2006, the complainant developed its original allegation concerning discrimination. In sum, it took the view that the languages of the new Member States are not recognised as a second language for candidates participating in the competitions.

The Ombudsman's considerations on points of law

1.4. The Ombudsman recalls that Article 12 EC states that "[w]ithin the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. (...)". As such, Article 12 EC constitutes a specific expression of the general principle of equality(18). The Ombudsman notes that secondary legislation must be interpreted in light of Article 12 EC.

1.5 The Ombudsman also recalls that the case-law of the Community Courts establishes that the principle of equal treatment (or non-discrimination) is breached when two categories of person whose legal and factual circumstances disclose no essential difference are treated differently(19).

1.6 The fact that a specific language is required in order to access employment will constitute indirect discrimination on the grounds of nationality unless it may be justified that the language requirement is proportionately and genuinely required given the nature of the post to be filled(20).

1.7 The Ombudsman also recalls that Community institutions must ensure that they act in accordance with the applicable legal rules. In this context, the Ombudsman notes EPSO's justification for the linguistic requirements in question that Regulation 401/2004 ("Regulation 401/2004") constitutes their legal basis.

1.8 Furthermore, the Ombudsman recalls that Regulation 401/2004 derogates from the usual rules on recruitment established under the Staff Regulations(21).

1.9 Article 1 of Regulation 401/2004 provides that, for a limited period of time (until 31 December 2010), vacant posts in the institutions may be filled by the appointment of nationals of the new Member States. Article 1 states that such recruitment can take place notwithstanding the second and third paragraphs of Article 4, Article 7(1), the third paragraph of Article 27 and points (a), (b) and (c) of Article 29(1) of the Staff Regulations., By allowing competitions for the recruitment of nationals of the 10 new Member States, Article 1 of Regulation 401/2004 establishes a difference in treatment on the basis of nationality. It therefore constitutes a derogation from the rules on recruitment established under the Staff Regulations. This derogation will remain in force until 31 December 2010.

1.10 Article 2 of Regulation 401/2004 provides that "until 31 December 2010, general competitions shall also be held for the recruitment of officials having one of the 11 official languages of the old Member States as their main language."

1.11 In light of the above, the Ombudsman considers that in order to deal with the complainant's allegation, he needs to assess what is the legal basis for linguistic requirements in Open Competitions EPSO/AD/25-29/05 and in Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04 and whether EPSO provided sufficient explanation to justify the linguistic requirements.

Legal basis for linguistic requirements in Open Competitions EPSO/AD/25-29/05

1.12 Candidates in Open Competitions EPSO/AD/25-29/05 are required to have one of the 11 official languages of the old Member States as their main language, that is, Danish, Dutch, English, German, French, Finnish, Greek, Italian, Portuguese, Spanish or Swedish. The Ombudsman notes that Article 2 of Regulation 401/2004 provides for the organisation of competitions for the recruitment of officials having one of the 11 official languages of the old Member States as their main language, that is, Danish, Dutch, English, German, French, Finnish, Greek, Italian, Portuguese, Spanish or Swedish. As such, the requirement in Open Competition EPSO/AD/25-29/05 as regards the main language of candidates complies with the applicable rules.

1.13 Candidates in Open Competitions EPSO/AD/25-29/05 are also required to have as their second language a satisfactory knowledge of one of the official languages of the old Member States. Since the derogation set out in Article 2 of Regulation 401/2004 only provides that general competitions may be held for the recruitment of officials having one of the 11 official languages of the old Member States as their main language, and the additional requirement in Open Competitions EPSO/AD/25-29/05 concerns the candidates' second language, the Ombudsman does not agree that Regulation 401/2004 constitutes a valid legal basis for this additional derogation from the Staff Regulations(22).

1.14 Even if Regulation 401/2004 does not provide a valid legal basis for the additional requirement that candidates demonstrate a satisfactory knowledge of one of the 11 official languages of the old Member States as their second language, it must be examined if such an additional requirement can be justified in accordance with the Staff Regulations.

1.15 The Ombudsman notes that according to Article 28(f) of the Staff Regulations, an official may be appointed if he produces evidence of "a thorough knowledge of one of the languages of the Communities and a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties" (emphasis added). In sum, in the absence of a specific derogation provided by law, in this case by Regulation 401/2004, candidates should be free to choose their second language from any language "of the Communities" unless it can be demonstrated that knowledge of (a) specific language(s) of the Communities is "necessary for the performance of his duties."

1.16 In this context, the Ombudsman asked EPSO, in his letter dated 22 February 2007, to explain why knowledge of one of the 11 official languages of the old Member States as a second language could be necessary for the performance of candidates' future duties, whilst knowledge of one of the 10 official languages of the new Member States could not.

1.17 The Ombudsman notes that, in its further reply, EPSO merely stated that the knowledge of one of the 11 languages was "better suited to the realities of the administrative organisation of the institutions during the transitional period", and that "there is no possible obligation to take account of the immense variety of individual choices that candidates could make when choosing a second language."

1.18 The Ombudsman considers that while it may be possible to put forward convincing reasons why knowledge of specific Community languages may be "necessary for the performance of (a future official's) duties," EPSO has not provided any satisfactory explanation as to why, in addition to knowledge of one of the 11 official languages of the old Member States as a main language, knowledge of any one of these 11 languages as a second language could be necessary for the candidates' future duties, whilst knowledge of one of the 10 official languages of the new Member States as a second language could not. EPSO's statement as regards the "realities of the administrative organisation of the institutions during the transitional period" does not detail what these realities are and what impact, if any, they have on the language requirements of the institutions. For the sole purposes of illustrating this point, the Ombudsman wonders why candidates who have English as their main language and Greek as their second language could better serve the needs of the institutions when compared to candidates who have English as their main language and Polish as their second language.

1.19 Therefore, the Ombudsman takes the view that, as regards Open Competition EPSO/AD/25-29/05, EPSO has not provided any satisfactory explanation as to why the knowledge of on of the 11 languages of the old Member States as a second language could be necessary for the performance of candidates' future duties, whilst knowledge of one of the official 10 languages of the new Member States could not.

1.20 In light of the above, the Ombudsman concludes that, by imposing a requirement that candidates in Open Competition EPSO/AD/25-29/05 demonstrate a sufficient knowledge of one of the 11 languages of the old Member States as their second language, and not of any of the official languages of the Communities, EPSO failed to act in accordance with the applicable legal rules . In doing so, EPSO discriminated against citizens who could otherwise have chosen, as their second language, an official language of a new Member State. This was an instance of maladministration. As a result, the Ombudsman will make a critical remark, as regards EPSO's organisation of Open Competition EPSO/AD/25-29/05.

Legal basis for linguistic requirements in Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04

1.21 Article 1 of Regulation 401/2004 derogates from the Staff Regulations to the sole extent that it allows competitions for the recruitment of nationals of the 10 new Member States.

1.22 Any limitation as regards which languages a candidate may be required to demonstrate knowledge of is not specifically covered by the derogation contained in Article 1 of Regulation 401/2004.

1.23 Candidates in Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04 are required to have a thorough knowledge of a language of a new Member State. However, given that a requirement whereby candidates must have a thorough knowledge of a language of a new Member State favours, indirectly, nationals of the new Member States, and given that Article 1 of Regulation 401/2004, in any event, permits the launching of competitions limited to candidates from the new Member States, this language requirement can be understood to fall within the derogation specifically provided for in Article 1 of Regulation 401/2004.

1.24 In addition to requiring that candidates have a thorough knowledge of a language of a new Member State, open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05 also require that candidates have a satisfactory knowledge of one of the 11 official languages of the old Member States, and that the pre-selection tests be taken in English, French or German (the written and oral tests could be held in one of the 11 official languages of the old Member States). In this respect, the Ombudsman considers that, to the extent that these language requirements do not fall within the derogation provided for in Article 1 of Regulation 401/2004, they must respect Article 28(f) of the Staff Regulations which states that an official may be appointed only on condition that he produces evidence of "a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties" (emphasis added).

1.25 As a preliminary observation, the Ombudsman does not consider it necessary to examine, as regards Open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05, whether the requirement to demonstrate a satisfactory knowledge of one of the 11 official languages of the old Member States constitutes maladministration. It suffices to point out that the conclusion drawn in 1.17-1.18 above as regards the imposition of such a requirement in Open Competitions EPSO/AD/25-29/05 applies, mutatis mutandis, to Open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05. As a result, the Ombudsman will, hereafter, only examine the requirement, in Open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05, to sit the pre-selection tests in one of three specific languages, namely in English, French or German.

1.26 In this respect, the Ombudsman notes EPSO's argument in its further reply that, in order to ensure good communication within the institutions and to enable work to be carried out within the reasonable time-limits, it is imperative to use what EPSO refers to as the "working languages" of the institutions. EPSO states that it was for that reason that it decided that the competitions for the new Member States would be taken in English, French or German(23).

1.27 In the Ombudsman's view, a requirement that candidates demonstrate knowledge of a specific language or specific languages may be necessary "for the performance of [a future official's] duties," and may thus comply with the Staff Regulations, provided it can be demonstrated that the efficient communication within an institution could be endangered if not all candidates were required to demonstrate knowledge of that/those language(s). Therefore, EPSO's argument (that is, that knowledge of English, French or German is necessary to ensure good communication within the institutions and to enable work to be carried out within the reasonable time-limits) would, in order to be convincing on the facts, require that all candidates who will eventually carry out substantially identical duties should, independently of their nationality, be expected to demonstrate knowledge of the specific languages chosen by EPSO (that is, of English, French or German). However, EPSO requires such knowledge from one group of candidates (candidates in Open Competitions EPSO/AD/4/04, EPSO/AD/23/05 and EPSO/AD/24/05), whilst not requiring it from another group of candidates (candidates in Open Competition EPSO/AD/25-29/05), even though these two groups of candidates would eventually carry out substantially identical functions. It is, therefore, legitimate to call into question whether the specifically more onerous language requirement is actually "necessary for the performance of [a future official's] duties."

1.28 The Ombudsman has considered to what extent it may be relevant that the justification for imposing the specifically more onerous language requirement is undermined by a comparison of various competitions. In this respect, the Ombudsman notes that the obligation to justify why specific languages might be required is an internal requirement of each individual competition. It is, however, appropriate that a failure to meet this internal requirement can be made evident as a result of a comparative assessment of requirements imposed in other competitions occurring at the same time and aimed at recruiting officials which will perform substantially identical duties.

1.29 The above observations do not call into question EPSO's right to increase, over time, the language requirements for candidates in response to the evolving language needs of the institutions. Further, it does not call into question EPSO's right to impose differing language requirements as regards competitions to recruit officials who will perform different duties.

1.30 In light of the above, the Ombudsman considers that the fact that a requirement to take tests in English, French or German was imposed in the context of Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04, and not imposed in other competitions taking place at the same point in time for the recruitment of officials who would eventually carry out substantially identical functions, called into question whether the requirement to take tests in English, French or German in Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04 was actually "necessary for the performance of [a future official's] duties." In this respect, EPSO infringed the principle of non-discrimination. This is an instance of maladministration and a critical remark will be made below.

1.31 The Ombudsman notes EPSO's statement that its Management Board recently decided that, in all future competitions, all candidates should sit the admission tests in their second language, which must be in English, French or German(24). In this respect, the Ombudsman will make a further remark below.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remarks:

1. As regards Open Competitions EPSO/AD/25-29/05, EPSO has not provided any satisfactory explanation as to why knowledge of one of the 11 languages of the old Member States as a second language could be necessary for the performance of candidates' future duties, whilst knowledge of one of the 10 official languages of the new Member States could not. Therefore, by imposing a requirement that candidates in Open Competition EPSO/AD/25-29/05 demonstrate a sufficient knowledge of one of the 11 languages of the old Member States as their second language, and not of any of the official languages of the Communities, EPSO failed to act in accordance with the applicable legal rules . In doing so, EPSO discriminated against citizens who could otherwise have chosen, as their second language, an official language of a new Member State. This was an instance of maladministration.
2. The fact that EPSO imposed a requirement to take tests in English, French or German in the context of Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04, and did not impose such a requirement in other competitions taking place at the same point in time for the recruitment of officials who would eventually carry out substantially identical functions, called into question whether the requirement to take tests in English, French or German in Open Competitions EPSO/AD/23/05, EPSO/AD/24/05 and EPSO/AD/4/04 was actually "necessary for the performance of [a future official's] duties." In this respect, EPSO infringed the principle of non-discrimination. This is an instance of maladministration.

Given that this is an "actio popularis" complaint, it is not appropriate to pursue a friendly settlement of the matter. Moreover, the competitions in question are completed and the relevant reserve lists are published(25). The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

FURTHER REMARK

In its reply to the Ombudsman's letter of 7 August 2006, EPSO informed the Ombudsman that the language requirements for competitions are to be reconsidered in the near future. The Ombudsman trusts that the present decision may be instructive in this regard.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) In this decision, the term "new Member States" is used to refer to the ten Member States that joined the EU on 1 May 2004, while the term "old Member States" refers to the 15 Member States that were already members of the EU prior to 1 May 2004.

(2) While Irish has been a treaty language since Ireland's accession in 1973, it only became an official language of the Communities on 1 January 2007. Irish is thus, not included in the 11 official languages of the old Member States referred to in the present inquiry.

(3) OJ 2004 L 67, p. 1.

(4) The complainant refers to the numbering of the Staff Regulations in force before 1 May 2004 when the Staff Regulations were changed.

(5) Article 5(5) the Staff Regulations states that: "[i]dentical conditions of recruitment and service career shall apply to all officials belonging to the same function group."

(6) Article 28(f) Staff Regulations states that: "[a]n official may be appointed only on condition that (...) (f) he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties."

(7) Numbering as in the old Staff Regulations (amended on 1 May 2004).

(8) Numbering as in the old Staff Regulations (amended on 1 May 2004).

(9) This document is entitled: "Linguistic Regime applicable to recruitment competitions organised by EPSO, Information Note by Vice-President Kinnock".

(10) T-214/00 Carrasco Benitez v Commission [2000] ECR-SC I-A-257 and II-1169, paragraph 53.

(11) In this decision, the term "new Member States" is used to refer to the ten Member States that joined the EU on 1 May 2004 while the term "old Member States" refers to the 15 Member States that were members of the EU prior to the accession of the new Member States.

(12) OJ 2004 L 67, p. 1.

(13) On 22 December 2004, EPSO launched Open Competition EPSO/AD/4/04 to recruit administrators (A7) in the field of European public administration (OJ 2004 C 317 A). On 2 June 2005, EPSO launched Open Competitions EPSO/AD/23/05 and EPSO/AD/24/05 to recruit administrators, respectively, in grades A5 and A9, in the field of audit (OJ 2005 C 135 A).

(14) While Irish has been a Treaty language since Ireland's accession in 1973, it only became an official language of the Communities on 1 January 2007. Irish is thus, not included in the 11 official languages of the old Member States referred to in the present inquiry.

(15) On 20 July 2005, EPSO launched five Open Competitions, EPSO/AD/25-29/05 (OJ 2005 C 178 A), to recruit administrators (AD5) in the fields, respectively, of European public administration/human resources, Law, Audit, Financial resource management and Economics/statistics.

(16) The Ombudsman notes that in Open Competitions EPSO/AD/23/05 and EPSO/AD/24/05, the candidates were required to have "a good working knowledge" of English, French or German.

(17) Knowledge of a candidate's main language was assessed during the oral test. However, the oral tests in question were mainly conducted in the second language of the candidates.

(18) Case C-224/00 Commission v Italy [2002] ECR I-2965, paragraph 14.

(19) Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 56.

(20) Case 379/87 Groener v Minister of Education [1996] ECR 3967. See also Article 3(1) of Regulation 1612/68.

(21) It should be recalled in this context that, pursuant to Article 2(2) of his Statute, the Ombudsman can only deal with complaints concerning maladministration. He is therefore unable to examine complaints that concern the merits of legislation or international treaties. The scope of the present inquiry does not, therefore, concern the difference in treatment established in accordance with Regulation 401/2004. The inquiry only concerns alleged discrimination, and by extension, alleged maladministration, insofar as the linguistic requirements imposed by EPSO may have exceeded the scope of the derogations provided for in Regulation 401/2004.

(22) The Ombudsman also recalls that it is settled case-law that any derogation from, or exception to, a general rule must be interpreted strictly. Case C-399/93 Oude Luttikhuis and Others [1995] ECR I-4515, paragraph 23; and Case C-5/01 Belgium v Commission [2002] ECR I-11991, paragraph 56; Case C-43/04 Finanzamt Arnsberg v Stadt Sundern [2005] ECR I-04491, paragraph 27; Case C-465/04 Hoyvem [2006] ECR I-2879, paragraph 24; Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835, paragraph 52; and C-303/98 Simap [2000] ECR I-7963, paragraphs 34 and 35.

(23) The Ombudsman notes that the present inquiry only concerns the allegation that EPSO discriminated against citizens from the new Member States through its linguistic requirements and that these requirements favour citizens who have one of the 11 official languages of the old Member States as their main language. The present inquiry does not concern the merits of choosing English, French and German, to the exclusion of other languages of the Communities, as languages for the purposes of facilitating internal communications in the institutions.

(24) In this respect, however, the Ombudsman points out that under Article 290 of the EC Treaty, the power to apply differential approach to the use of official languages of the Union is vested solely in the Council, which must exercise that power with due respect for the principle of linguistic diversity.

(25) According to EPSO's website (http://europa.eu/epso/laureats/liste_a_ad_en.htm) the reserve lists are valid until 31 December 2007 and may be extended.