The background to the complaint

1. This case concerns the allegedly discriminatory nature of the linguistic requirements of Open Competition EPSO/AST/118/11 ('the competition')[1] organised by the European Personnel Selection Office (EPSO).

2. The complainant is an Italian citizen who took part in the competition, which was organised to draw up a reserve list to fill vacant posts within the institutions for assistants (AST 3) in the fields of financial management; accounting, communication and project management; programme management; and contract management. He chose the field of project management and, on 4 January 2012, validated his online application. The Notice of Competition required candidates to have a thorough knowledge of one of the official languages of the European Union as their 'main language' and a satisfactory knowledge of English, French or German as their 'second language'. Their second language had to be different from their main language. The complainant chose Italian as his main language and English as his second language for the purposes of the competition.

3. On 14 January 2012, before sitting the computer-based test (CBT), the complainant submitted to EPSO a complaint under Article 90(2) of the Staff Regulations. The complaint concerned the linguistic requirements of the competition, as set out in the Notice of Competition.

4. According to the complainant, the linguistic requirements of the competition were discriminatory because they favoured candidates whose mother tongue is English, French or German. In particular, the complainant argued that the terms of the Notice of Competition allowed candidates whose mother tongue is English, French or German to choose which tests to take in their native language, while this option was not open to other candidates. Candidates whose mother tongue is English, French or German could therefore decide to take the computer-based tests (CBTs) in their second language and the assessment centre tests, which the complainant considered to be linguistically more demanding, in their native language. Therefore, the complainant requested that the admission conditions concerning the knowledge of languages be changed.

5. On 11 May 2012, EPSO rejected the complainant's complaint. In its decision, EPSO provided a brief account of the relevant case-law of the EU judicature on linguistic requirements in open competitions. In particular, EPSO pointed out that, according to the case-law[2], (i) the choice of German, English and French as the available options for the second language in a competition corresponds to the operational needs of the institutions, and EPSO is entitled to require candidates to have knowledge of these languages as their second language. It moreover followed from the Court's case-law that (ii) while language requirements must not give rise to unjustified differences of treatment, a breach of the principle of equal treatment cannot be established on the basis of differences existing between the specific factual circumstances of candidates as regards their knowledge of languages. Thus, the fact that some candidates might have a broader choice of the languages required, due to their individual circumstances, does not establish unequal treatment. EPSO stressed that the Notice of Competition did not use the notion of "mother tongue", since a candidate's mother tongue, that is the language first learned, does not necessarily correspond to the level of proficiency in that language. Rather, the notice required that candidates demonstrate a thorough knowledge of one of the EU official languages and a satisfactory knowledge of one of the three working languages of the EU.

6. Finally, EPSO considered the complainant's view that candidates whose mother tongue is English, French or German would be advantaged by the possibility of choosing to sit the assessment centre tests in their native language to be speculative. In this regard, EPSO argued that the difficulty of CBTs, especially of the verbal reasoning tests, is such as to require a thorough knowledge or proficiency in the language of the tests. Moreover, competition at this stage is particularly intense, given the very high number of candidates and the limited number of candidates to be invited to the next stage. As a consequence, a candidate who decides to take these tests in a language of which he or she has only a satisfactory knowledge would potentially have a significant disadvantage competing against other candidates who take them in their native language. Thus, contrary to what the complainant argued, reversing the language choices could potentially significantly increase the risk of elimination at the very first stage of the competition.

7. On 20 May 2012, the complainant lodged the present complaint with the European Ombudsman.

The subject matter of the inquiry

8. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation

The linguistic requirements for Open Competition EPSO/AST/118/11 are discriminatory.

Claim

EPSO should perform a proper assessment of the knowledge of the main language declared by candidates so as to ensure that candidates whose native language is English, French or German can choose that language as a second language only if they have a proven thorough knowledge of their declared main language.

9. The Ombudsman also asked EPSO to clarify in its opinion whether, apart from the pre-selection test, additional measures had been taken to assess candidates' knowledge of their declared main language and to provide data on the number of British, French and German candidates who respectively chose English, French and German as their second language in the competition at issue.

The inquiry

10. On 20 June 2012, the Ombudsman decided to open an inquiry and, as a first step, asked the complainant to clarify the subject matter of his complaint.

11. On 5 July 2012, the complainant submitted his clarifications.

12. On 13 November 2012, the Ombudsman asked EPSO for an opinion on the complainant's allegation and claim.

13. EPSO's opinion was submitted to the Ombudsman on 16 April 2013. It was forwarded to the complainant with an invitation to make observations. The complainant did so on 20 May 2013.

The Ombudsman's analysis and conclusions

A. Allegation of discriminatory language requirements and related claim

Arguments presented to the Ombudsman

14. In his complaint, the complainant alleged that the linguistic requirements for Open Competition EPSO/AST/118/11 were discriminatory because they favoured candidates whose mother tongue is English, French or German. He argued that the admission conditions should prevent candidates from using their mother tongue for the assessment centre tests unless the possibility to do so is offered to every candidate. Therefore, the complainant claimed that EPSO should perform a proper assessment of the knowledge of the main language declared by candidates so as to ensure that candidates whose native language is English, French or German can choose that language as a second language only if they have a proven thorough knowledge of their declared main language.

15. In his clarifications, the complainant underlined that the assessment centre tests were linguistically more demanding than the CBTs since, according to him, they required a more thorough knowledge of the relevant language.

16. The complainant did not dispute EPSO's statements that (i) institutions may require the knowledge of specific working languages and (ii) the fact that some candidates speak those languages because of their personal situation, for instance, because they are bilingual or belong to a national minority, cannot constitute discrimination. However, he stated that it was unfair to give candidates whose sole 'advantage' is to have grown up in a Member State where English, French or German is spoken, the chance to use their main language in the second phase of the competition without requiring them to prove that they have a thorough knowledge of another language. The complainant submitted that a good knowledge of a given language was sufficient to succeed in the CBT, which basically tested logic. Moreover, the complainant pointed out that the first phase, consisting of multiple-choice tests, only required written comprehension skills, while the second phase required candidates to demonstrate oral and written comprehension skills, as well as drafting skills. Therefore, in his view, allowing candidates to use their main language in the second phase, as long as that possibility was limited to English, French or German, was discriminatory.

17. The complainant finally suggested that EPSO could either (i) verify that the main language declared by candidates is in fact their main language and prevent them from using it at the assessment centre tests or (ii) allow all candidates to use their main language in the assessment centre tests and verify their knowledge of one of the EU working languages (English, French or German) by way of an additional specific test.

18. In its opinion, EPSO replied to the Ombudsman's questions. It stated that no measures other than the CBTs were provided or taken to assess candidates' knowledge of their main language. EPSO also provided the requested statistical data.

19. EPSO took the view that the complainant's argument, that is that CBTs did not allow for a proper assessment of candidates´ language skills, was neither conclusive nor substantiated by any objective element of proof. In particular, EPSO underlined that successful performance in CBTs presupposes a precise understanding of the complex grammatical structures of the language used for the tests, a possession of a broad range of vocabulary, as well as a familiarity with idiomatic expressions and various nuances of register and style.

20. EPSO also stated that the multiple-choice format of CBTs does not in any way preclude varying the level of difficulty of tests. In fact, the level of difficulty is adapted across different competitions to reflect the presumed level of linguistic proficiency of the candidates targeted by a particular competition. EPSO went on to clarify that the required level corresponds to: (i) a satisfactory knowledge for tests taken in the candidates´ second language; (ii) a thorough knowledge for tests taken in the candidates' main language for non-linguistic job profiles; and (iii) a perfect proficiency for tests taken in the main language in competitions held for professional linguists. Taking the above into account, EPSO concluded that the CBTs used in the competition in question were an appropriate means for verifying that the candidates had a thorough knowledge of their declared main language.

21. EPSO added that the statistical data it submitted to the Ombudsman would allow her to establish that the language requirements in open competitions, and in particular in the one referred to in the complaint, were not discriminatory.

22. Furthermore, EPSO underlined that candidates are completely free to choose which official language they wish to declare as their main language, as recognised by the relevant case-law[3].

23. Finally, EPSO submitted that reversing his or her language choices would be of no apparent benefit to a candidate. On the contrary, reversing the language choices could potentially significantly increase the risk of elimination at the very first stage of the competition. In such a case, the candidate would have to sit the CBT in a language that he or she masters significantly less than the thousands of other candidates against whom he or she is competing do.

24. In his observations, the complainant argued that EPSO did not properly understand the object of his complaint. He maintained that the core aspect of his allegation was that CBTs did not allow it to be determined whether the language chosen by the candidate is indeed his or her main language. He then reiterated that CBTs only allowed it to be determined whether a candidate has a good knowledge of the chosen language, and not whether that language is his or her main language. It follows that candidates whose main language is English, French or German may declare their main language as being their second language. Therefore, they may enjoy an advantage at the assessment centre stage because they have the option of using a language that they master better.

The Ombudsman's assessment

25. The Ombudsman notes that Article 21 of the European Charter of Fundamental Rights states: "[a]ny discrimination based on any ground such as ... language ... shall be prohibited." Article 18 of the Treaties reads: "[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."

26. The Ombudsman further notes that the Staff Regulations also specify that the principle of non-discrimination applies as regards the employment relationship between EU institutions and their staff[4]. In particular, Article 1(d)(1) of the Staff Regulations provides that, whenever the Staff Regulations apply, any discrimination based on, inter alia, language is to be prohibited. The first sentence of Article 1(d)(6) states that any limitation of the principle of non-discrimination 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.

27. Pursuant to Article 28(f) of the Staff Regulations, officials may be appointed only on condition that they, inter alia, produce evidence of a thorough knowledge of one EU language and a satisfactory knowledge of another EU language to the extent necessary for the performance of the duties involved. It emerges from the case-law that reference to a thorough knowledge should not be interpreted as being limited only to the language of a candidate's nationality or, in the case of a candidate who is a national of a Member State having more than one official language, only to that in which he underwent his education[5].

28. It is against this background that the Ombudsman will assess EPSO's position.

29. At the outset, the Ombudsman notes that the Notice of Competition limited the choice of the second language in the competition to English, French and German. According to the case-law of the Court of Justice, institutions organising a competition have to establish why they require candidates to have knowledge of one or more languages out of the 24 official languages of the Union[6]. The Court furthermore held that the interest of the service may be a legitimate objective that can be taken into consideration in this regard[7]. In the present case, the complainant did not challenge the fact that the Notice of Competition restricted the choice of the second language to English, French and German. Consequently, the Ombudsman does not have to assess that issue.

30. Instead, the complainant argued that the fact that only candidates with English, French or German as a mother tongue may choose to take the assessment centre tests in their native language, while candidates with another mother tongue may not, amounts to an instance of discrimination. In support of his view, the complainant argued that (a) the CBT was linguistically less demanding than the assessment centre tests. This, in turn, meant that (b) candidates whose mother tongue is English, French or German were advantaged by the possibility of choosing to sit the assessment centre tests in their native language.

31. As regards (a), the Ombudsman points out that the Notice of Competition set out the following. The first phase of the competition was the CBT. One part of CBT was to be taken in the candidate's main language and consisted of multiple-choice questions aimed at assessing general aptitudes and competencies as regards verbal, numerical and abstract reasoning. The other part of the CBT was to be taken in the candidate's second language and consisted of a situational judgment test. The second phase of the competition, that is the assessment centre tests, consisted of: an accuracy and precision test, and a prioritising and organising test. Both tests were to be taken in the candidate's second language. The Ombudsman notes that the test questions in the CBT (which includes a logical reasoning component as well as a verbal reasoning component) were diverse and that their difficulty could be adapted to the required degree of linguistic proficiency. In light of the above, the Ombudsman considers EPSO's position, that success in the CBT presupposes a thorough knowledge of the language chosen by a candidate, is reasonable.

32. As regards (b), the Ombudsman considers that EPSO convincingly explained that reserving one's mother tongue or one's best language for the assessment centre stage of the competition does not necessarily give a candidate an advantage over the other candidates. In this regard, the Ombudsman points out that, assuming that candidates whose mother tongue is English, French or German choose to use that language at the assessment centre stage, they are first required to sit and to pass the CBT in a different language. In this regard, EPSO's submission that competition at the CBT stage is particularly intense is borne out by the statistical data that EPSO submitted.

33. At the Ombudsman's request, EPSO provided detailed statistics concerning language choices and the number of Austrian, German, French and British candidates who: (i) applied for the competition at issue; (ii) succeeded in the CBT; and (iii) had their names included in the reserve list. On the basis of the statistical data provided, EPSO convincingly argued that candidates who presumably "inverted" their languages enjoyed no apparent benefit with respect to succeeding in the competition, and, more specifically, in the assessment centre tests. In particular, the data show that the success rate in the assessment centre tests of candidates holding British, French, Austrian or German nationality who chose English, French or German as a second language is comparable to that of the general group of candidates holding British, French, Austrian or German nationality.

34. It follows from the above that the complainant's allegation that the linguistic requirements for Open Competition EPSO/AST/118/11 were discriminatory has not been established. Given that the complainant's allegation cannot be sustained, the Ombudsman finds that there was no need for EPSO to use means other than the CBT to assess the knowledge of the main language declared by candidates. Accordingly, the complainant´s claim cannot succeed.

B. Conclusion

On the basis of her inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 27 February 2014

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[1] OJ 2011 C 350 A, p. 1.

[2] See Joined Cases T-166/07 and T-285/07 Italy v Commission [2010] ECR II-193, paragraphs 80-81, 93; Case F-7/07 Angioi v Commission, judgment of 29 June 2011, not yet published in the ECR, paragraphs 89-91 and 103.

[3] See Angioi v Commission, cited above, paragraph 68.

[4] Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ 45, 14.6.1962, p. 1385), as amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287 p. 15).

[5] See Case F-7/07 Angioi v Commission, cited above, paragraph 68.

[6] See Case C-566/10 P Italy v Commission, judgment of 27 November 2012, not yet published in the ECR, paragraphs 81 et seq.

[7] See Case C-566/10 P Italy v Commission, cited above, paragraph 88.