The background to the complaint

1. The complainant in case 826/2013/EIS ('the first complainant') is an Italian association that represents the interests of translators and interpreters in Italy, and the complainant in case 878/2013/EIS is an Italian freelance translator ('the second complainant').

2. The Court of Justice of the European Union (hereinafter referred to as the 'CJEU') issued call for tenders 75049-2013 for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Italian. The contract notice^[1]was published in the Official Journal of the European Union on 7 March 2013.

3. According to point III.2.3 ('Technical capacity') of the contract notice, candidates had to meet the following educational and related requirements:

[...] "2. In respect of the candidate who is a natural person or, in the case of a candidate who is a legal person, in respect of each natural person engaged in the provision of the services covered by the contract, a CV and information and copies of qualifications must be provided (per lot) in respect of the following:

— degree in law (laurea in Giurisprudenza) gained from, and issued by, an Italian university (for the type of qualifications accepted refer to 'Minimum level(s) of standards possibly required'),

— in-depth knowledge of the source language (of the lot concerned), must be proven via relevant documents,

— sufficient IT knowledge for translation activities".

4. The second complainant contacted the CJEU and expressed his dissatisfaction with the educational requirement for Italian-language translators. He argued that the requirement was discriminatory because translators with Italian as a main language need to hold a university degree in the legal field, while there are a number of qualified legal translators in Italy whose university degree is in the field of translation and/or interpretation and not law.

5. The CJEU replied that since the staff (lawyer-linguists) it hires must necessarily hold a law degree, freelance translators who perform the same duties need to fulfil the same criterion. In this respect, knowledge of the law is indispensable. In respect of some languages, however, there is no such educational requirement, because otherwise, certain services of the CJEU would not have enough freelance translators. Still, even in the calls for tenders relating to those languages, it is stipulated that preference is given to translators who hold a degree in the legal field. In conclusion, the CJEU took the view that there is no discrimination based on language because the different requirements reflect the different needs of language services and are in conformity with the applicable provisions of Regulation (EU) No 1268/2012[2].

6. The same complainant replied to the CJEU on the following day and disputed the position taken by the latter on the following grounds: (i) if the work to be performed consists of translating texts, professional translators with knowledge and skills in translation should be admitted to take part in such tender procedures (it is extremely rare to find freelance lawyer-linguists in Italy); (ii) in one case, a freelance translator with 20 years of experience in legal translation won a tender but was excluded from this call; (iii) the University of Trieste in Italy, for example, has a specialised Master's degree programme in legal translation, which also includes legal studies; (iv) the assumption that a translator cannot translate legal texts is arbitrary; and (v) the CJEU gave a wrong interpretation of the applicable provisions of Regulation (EU) No 1268/2012, which amounts to discrimination.

7. A few days after the first complainant submitted its complaint to the European Ombudsman, the second complainant also lodged a complaint about the same matter.

The inquiry

8. The Ombudsman opened parallel inquiries into the complaints and identified the following allegation and claim:

1) The educational requirement laid down by the Court of Justice in its tender procedures organised with the aim of concluding service contracts for the translation of legal texts from certain official languages of the European Union into Italian is discriminatory.

2) The Court of Justice should allow professional freelance translators whose degrees are, in the main, not in the legal field to participate in its tender procedures for the provision of translation services in Italian.

9. In the course of the inquiry, the Ombudsman received the opinions of the CJEU on the complaints and, subsequently, the comments of the second complainant in response to the CJEU's opinions. The first complainant did not submit any observations. Subsequently, the Ombudsman decided to deal with the two cases jointly. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Allegation that the educational requirement laid down by the CJEU in its tender procedures is discriminatory and related claim

Arguments presented to the Ombudsman

10. The complainants argued that a law degree is not required in similar tender procedures of the CJEU concerning the translation of legal texts into the following languages: English, Dutch, Danish and Swedish. Moreover, the challenged requirement does not take into account (a) the knowledge and skills that professional translators possess or (b) the fact that, in Italy, high-quality legal translation courses are offered at university level for non-lawyers.

11. The CJEU noted that the principles of non-discrimination and equal treatment require that two similar situations are not treated in different ways. According to the CJEU, it follows that two different situations must not be treated in the same way, unless such similar treatment is objectively justified.

12. As regards the complainants' second argument referred to in point 10 above, the CJEU underlined that the texts translated by its translation units are legal and very complex. The Italian translation unit mainly translates judgments and orders of the CJEU as well as conclusions of the Advocates-General into Italian. In addition, there are procedural acts, such as requests for preliminary rulings from national courts, in which the Italian version is notified to the Italian government, which then bases all its written and oral submissions on that version. In cases where Italian is the language of the procedure, the observations of the Member States are translated into Italian. Finally, there are communications in the Official Journal regarding appeals. These communications are the only means for the Member States and the public to determine whether they have an interest in the cases concerned.

13. It follows from the above that the reasons why translations provided by the CJEU must be of excellent quality are twofold: the system seeks to (i) ensure an accurate and uniform circulation of the case-law in all the official EU languages; and (ii) enable the Member States' governments to present their arguments correctly in cases that give rise to legally binding decisions. Against this background, according to the CJEU, only a fully qualified lawyer can successfully perform such duties. This is further reflected by the fact that, in accordance with Article 42 of its Rules of Procedure, the CJEU hires only persons in possession of a law degree for its translation services. The European Personnel Selection Office (EPSO) also lays down the same requirement in its recruitment procedures. Since these requirements apply to the CJEU's internal staff, the CJEU also applies them to its external contractors.

14. The CJEU also referred to Article 146 of Regulation 1268/2012, and in particular to paragraph 2 thereof, according to which, "[t]he selection criteria shall be applied in every procurement procedure for the purposes of assessing the financial, economic, technical and professional capacity of the candidate or the tenderer. The contracting authority may lay down minimum capacity levels below which candidates may not be selected". Furthermore, in accordance with Article 127(3) of the same Regulation, in a negotiated procedure, the contracting authority must "consult tenderers of their choice who satisfy the selection criteria laid down in Article 146, and negotiate the terms of their tenders with one or more of them" (emphasis added).

15. As regards the complainants' argument that a law degree is not required in the CJEU's similar tender procedures concerning translation into English, Dutch, Danish and Swedish, the CJEU explained that a full law degree is always given preference. However, there are certain language combinations for which it is impossible to find a sufficient number of external contractors where the requirement for a legal degree is applied. The CJEU gave the following reasons, based on its knowledge of national markets and past experience, for this lack: (i) the limited number of persons who speak a given EU language; (ii) the general level of knowledge of foreign languages among lawyers in certain countries; (iii) the availability of lawyers knowing foreign languages in certain countries; (iv) the limited total number of lawyers in some countries; and (v) a combination of all these factors.

16. The CJEU explained that it thus sometimes needs to conclude contracts with non-lawyers, but it is aware of the fact that such contracts constitute a risk and create more work for its internal services in terms of revision, which is also reflected in the real price per translation page and thereby in the Union's budget. However, even in the case of tenders open to non-lawyers, preference is given to lawyers for the reasons set out in points 12 and 13 above. In accordance with Article 127(3) of Regulation 1268/2012, non-lawyers are invited to submit their tenders only where the contracting authority does not have a sufficient number of lawyer candidates who satisfy the selection criteria. As regards the English, Dutch, Danish and Swedish languages, the CJEU pointed out that a preference for tenderers who hold a law degree is clearly set out in the relevant contract notices.

17. In conclusion, the CJEU took the view that its approach in this case was objectively justified and proportionate. It derogates from the requirement of holding a law degree only when it is objectively forced to do so. Since in Italy there is a wide pool of multilingual lawyers, it considered that the contested requirement set out in contract notice 75049-2013 does not constitute discrimination.

18. In his observations, the second complainant criticised the fact that the CJEU replied to the Ombudsman with a delay of about seven weeks, whereas he had only about five weeks within which to submit his observations. He argued that a comparison between open competitions organised by EPSO and tender procedures organised by the CJEU was not justified in this case. In fact, on the basis of the criteria that the CJEU considers indispensable for the successful performance of the duties of a freelance translator, it seems as though the task to be performed is the drafting of legal texts in several languages rather than their translation.

19. The complainant also argued that the position of the CJEU seems to suggest that professional translators never come across complex, specialised texts. In fact, he pointed out that texts translated by non-translators can include serious deficiencies from a linguistic point of view. The CJEU's position did not take into account that translators, after years of studies, specialise in certain topics. Some translators even acquire the same level of knowledge as specialists in a given area. Furthermore, other EU institutions do not follow the same rule. According to the CJEU's reasoning, texts concerning the Common Agricultural Policy should be translated by multilingual agronomists and not translators. Finally, the fact that the CJEU made prejudicial statements about the knowledge and skills of translators is particularly serious.

20. As regards the alleged unequal treatment of tenderers with different main languages, the complainant contested the CJEU's statements and took the view that the case clearly constituted discrimination and unequal treatment. At the very least, the CJEU should have explained, by means of facts and figures, what its knowledge of national markets and past experience consisted of. However, it would be best to eliminate the problem by specifying the same selection criteria for the provision of translation services in all the official languages. The current practices risk creating a dangerous precedent of discrimination based on language and origin, whereas giving professional translators the possibility of taking part in the tender procedures of the CJEU would not prevent it from selecting the best candidates.

The Ombudsman's assessment

21. The Ombudsman accepts the CJEU's statement that the texts translated by its translation units are legal, very complex and are mainly produced for an audience versed in EU law.

22. It is understandable that the complainants may consider that non-lawyer freelance translators having Italian as their main language and who are excluded from the CJEU's calls for tenders are treated less favourably than their counterparts whose main language is English, Dutch, Danish or Swedish and who are entitled to respond to such calls for tenders.

23. However, on the other hand, the CJEU clearly explained that these arrangements are based on objective practical reasons related to the limited availability of translators with English, Dutch, Danish or Swedish as a main language who at same time hold a law degree. The Ombudsman does not see any reasons to doubt this reasoning. Besides, in the observations, the complainants did not challenge the CJEU's argument that there is an abundance of native Italian-speaking lawyers who are potentially interested in working for the CJEU.

24. Furthermore, the Ombudsman notes that the standard approach followed by the CJEU is that external translators must have a law degree. The Ombudsman takes no view on the merits of this approach but recognises that it is within the discretion of the CJEU to require, in the normal course, that an external translator must have a law degree. The contract notices in the tender procedures challenged by the complainants make it clear that candidates with a law degree have priority over candidates who do not hold a law degree. In circumstances where there are too few candidates with both a law degree and an appropriate expertise in a particular language, and the CJEU needs translators in that specific language, it is reasonable that the CJEU should be prepared to consider applications from non-lawyer candidates.

25. Finally, the Ombudsman accepts the CJEU's argument that the contracting authority enjoys discretion as regards the minimum levels of ability it wishes to establish in its calls for tenders. This discretion allows the contracting authority to issue calls for tenders with varying selection criteria as between its language combinations. Indeed, if the CJEU were to decide to organise tender procedures for the translation of legal texts into Italian declaring a preference for lawyers but admitting applications from non-lawyers as well, this exercise would not be administratively efficient. It would in fact result in unnecessary work on the part of non-lawyer candidates who would take the trouble of drafting their bids, when preferred bids from candidates with a legal background would be sufficient to satisfy the CJEU's needs.

26. For the above reasons, the Ombudsman considers the CJEU's explanation satisfactory.

27. The Ombudsman cannot agree with the second complainant that the reasons provided by the CJEU undermine or prejudice the profession of professional translators. In fact, in its opinions, the CJEU merely explained why it finds it more appropriate to require a law degree than, for example, a translation degree in the context in which it operates.

28. Concerning the view expressed by the second complainant that the position of the CJEU is not consistent with that of the translation services of other institutions, the Ombudsman reiterates that each contracting authority enjoys a certain level of discretion as regards the various levels of ability it wishes to establish. Contracting authorities of different institutions are therefore free to take the needs of their translation services into account in this respect. The complainant's view is thus not convincing.

29. In the course of this inquiry, the second complainant drew attention to the fact that the CJEU had been slow in replying to the Ombudsman's request for a response. In fact, the CJEU's opinion on the complaint was provided seven weeks after the expiry of the Ombudsman's preferred time limit which allowed for a reply within three months. The complainants, on the other hand, had just five weeks within which to provide their observations. The Ombudsman understands the second complainant's unhappiness in this regard. However, it is not within the scope of this inquiry to follow up on this issue. Nevertheless, the Ombudsman regrets the fact that the CJEU did not reply within the preferred time limit[3].

30. In light of all the foregoing, the Ombudsman concludes that there was no maladministration in the CJEU's conduct. Against this background, the complainants' claim cannot succeed.

Conclusion

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

There was no maladministration.

The complainants and the Court of Justice of the European Union will be informed of this decision.

 

Emily O'Reilly