THE BACKGROUND TO THE COMPLAINT

1. The complainant is a German citizen. His present complaint relates to the European Commission's practice of posting external vacancy notices for senior management positions in the English-language international press.

2. On four occasions between June and October 2008, the complainant wrote to the then Commissioner responsible for multilingualism. In his letters, he expressed disagreement with what he believed to be the Commission's practice of publishing vacancy announcements for senior management positions in the English-language weekly international press, but not in the press of other countries or in other languages. The complainant considered this practice to be an infringement of the equality of languages.

3. Not having received a reply to his letters, on 23 October 2008, the complainant submitted the present complaint to the Ombudsman.

4. On 3 November 2008, he informed the Ombudsman that he had, in the meantime, received the Commission's reply, dated 31 October 2008. In its letter, the Commission pointed out that external vacancies have to be published in the Official Journal of the EU ('the Official Journal') in the 23 official languages of the EU. Additional publicity for these vacancies is ensured by their publication on the 'Europa' website, the website of the European Personnel Selection Office (EPSO), as well as by announcements in national newspapers in the 27 Member States. The Commission further explained that, in certain cases, it publishes vacancy notices in printed media with an international audience, such as The Economist or The Financial Times, so as to reach potential candidates living outside of the EU. In its view, this practice does not amount to discrimination against German or any other official languages of the EU.

5. The complainant considered that the Commission's reply merely confirmed the state of affairs he described and did not constitute an acceptable justification of its practice. He thus maintained his complaint. In a letter to the Ombudsman dated 3 November 2008, he pointed out that he does not like having to read certain English publications in order to be informed of relevant vacancies. In his opinion, the Commission's publication practice privileged a certain language or a certain culture. According to him, this was not mitigated by the publication of vacancy notices in the Official Journal or on relevant websites.

THE SUBJECT MATTER OF THE INQUIRY

6. In his complaint to the Ombudsman, the complainant submitted the following allegations and claim:

Allegations:

1. The practice of the Commission to publish certain vacancies in the English-speaking weekly press, but not in the press of other countries or languages, infringes the equality of languages and indirectly affects the equality of citizens and the Member States.
2. The Commissioner responsible for multilingualism (i) failed to reply to the complainant's e-mails within a reasonable period of time and (ii) to take appropriate action concerning the above practice.

Claim:

The Commission should (i) publish the vacancy notices in the printed media of all EU countries or languages, at least in the three working languages of the Commission; or (ii) publish the vacancies only on the Internet.

7. As regards the second aspect of the complainant's second allegation, the Ombudsman, in the letter opening his inquiry, noted that one of the Commission's Vice-Presidents, in agreement with the then Commissioner for multilingualism, sent a reply to the complainant setting out the Commission's position in relation to the above-mentioned practice. In light of these circumstances, there were insufficient grounds to include the second aspect of the complainant's second allegation in his inquiry (pursuant to Article 228 of the Treaty on the Functioning of the European Union).

THE INQUIRY

8. On 9 December 2008, the Ombudsman asked the Commission for an opinion on the complaint. The Commission submitted its opinion on 23 March 2009. This opinion was forwarded to the complainant with an invitation to make observations by 31 May 2009. No observations were received by this date.

9. On 9 February 2010, the complainant contacted the Ombudsman and pointed out that his last written contact with the Ombudsman in this matter had been in April 2009, when he submitted his observations on the Commission's opinion. He therefore asked the Ombudsman to proceed with his case. The legal officer in charge of dealing with the case subsequently contacted the complainant by telephone and explained that the observations to which the complainant referred had not reached the Ombudsman's office. On 10 February 2010, the complainant re-sent his observations, which he originally sent in April 2009. On 27 May 2010, the legal officer handling his case informed the complainant about the state of affairs. In his reply of the same date, the complainant informed the Ombudsman that the Commission still had the same publishing practice. This was apparent from the Commission's reply to a relevant question recently put to it by a Member of the European Parliament.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

10. Given their close factual connection, it is convenient to deal with the complainant's first allegation and his claim together.

A. As regards the Commission's publication practice (the complainant's first allegation and his claim)

Preliminary remarks

11. The complainant's allegation and claim here under review relate to an alleged infringement of the equality of languages which, according to the complainant, impacts on the equality of citizens and the Member States. In the complainant's view, this infringement results from the Commission's practice of posting external vacancy notices for senior management positions in the weekly English-language press, but not in printed media in other languages.

12. In his observations, the complainant also pointed to what he perceives to be an obvious privileging of the conservative-liberal spectrum of the London-based press, which in his view benefits from an increased turnover, indirectly financed by tax-payers as a result of the Commission's publication practice. The complainant submitted that this was evidenced by the vacancy notice for a 'Director Nuclear Safeguards', which featured in a table submitted by the Commission with its opinion (see paragraph 22 below) and was reserved for applicants from the 12 new Member States. According to the table, this vacancy was advertised in The Financial Times, The Economist and The Sunday Times. The complainant could not understand why The Sunday Times, which, in his view, is considered to be "eurosceptic", would be preferred by nuclear safety specialists from the new Member States over other newspapers, such as The Guardian and The Independent. It appears from his observations, therefore, that the complainant not only wishes to complain about the privileging, in the Commission's publication practice, of English-speaking printed media to the exclusion of printed media in other official languages, but also about the fact that the Commission chooses specific printed media in the English language rather than other printed media in the same language.

13. The Ombudsman considers that this aspect is different from the issue of language discrimination which the complainant alleged in his complaint. It would thus have to be considered as a new allegation. The Ombudsman recalls, however, that Article 2(4) of his Statute requires a complaint to him to be preceded by appropriate administrative approaches to the institution concerned. From the material submitted to the Ombudsman, it appears that the complainant has not yet sufficiently drawn the Commission's attention to the fact that he also wishes to complain about its choice of certain printed media in the English language to the exclusion of other printed media in the same language. The Ombudsman is therefore not entitled to deal with this aspect in the present decision.

14. The complainant remains free to submit this grievance to the Ombudsman again after having made appropriate administrative approaches to the Commission, if he so wishes.

Arguments presented to the Ombudsman

15. The complainant alleged that the Commission's above-mentioned publication practice infringes the equality of languages and indirectly affects the equality of citizens and the Member States. In support of his allegation, he submitted examples of vacancy notices published in the international printed media. He claimed that the Commission should publish the vacancy notices in the printed media of all EU countries or languages, at least in the three working languages of the Commission, or only publish the vacancies on the Internet.

16. In its opinion, the Commission relied on the judgment of the General Court in Case T-185/05[1], which relates to the language regime for external publications of senior management positions in the Official Journal. The Commission pointed out that this judgment clarified that EU law does not require such publications routinely to be made in all official languages. However, the Court also stated that, if the Commission decides to publish the full text of a vacancy announcement in the Official Journal in certain languages only, it has to adopt appropriate measures to inform all potential candidates about the vacancy notice concerned and the editions of the Official Journal in which it has been published. This is a minimum requirement in order to avoid discrimination on grounds of language between candidates potentially interested in the vacancy notice. The Commission submitted that, provided this condition is met, publication in a limited number of languages is not likely to give rise to discrimination between candidates, as long as adequate knowledge of at least one of those languages is defined as an eligibility criterion.

17. The Commission submitted that its current practice is in line with the judgment of the General Court. Thus, as a general rule, whenever it decides to publish a vacancy notice in a limited number of languages, all the other versions of the Official Journal contain at least a reference to the full notice.

18. Concerning the external publication of vacancies for senior management positions, the Commission explained that its current practice is as follows. It publishes the full versions of vacancy notices in the Official Journal in all 23 official languages of the EU. Normally, such vacancy notices are also published on websites, such as the 'Europa' and EPSO websites, and in the national press of the Member States. As regards the latter, the Commission stated that it normally publishes vacancy notices for senior management positions in one or, as the case may be, two newspapers or magazines with nationwide distribution. In order to also reach potentially interested candidates living in other parts of the world, vacancy announcements are additionally published in newspapers or magazines with an international target audience. In this context, the Commission referred to The Economist and The Financial Times.

19. The Commission stated that the same basic principles apply to the publication of vacancy notices for senior management positions reserved for citizens from the 12 new EU Member States. These posts are published in the Official Journal in the 12 relevant languages, as well as on the 'Europa' website in English, French and German, but not in the other official languages. In addition, they are published in the national press of the 12 new Member States and also in The Economist and The Financial Times, where appropriate.

20. The Commission pointed out that the examples of vacancy notices submitted by the complainant were in line with the above principles. It stated that, in addition to the publication in The Economist, from which most of the examples were taken, all vacancy notices were published in the Official Journal, in accordance with the above principles, as well as, where appropriate, in the printed media of the Member States concerned in order to reach the relevant target audience in a cost-efficient manner. Given that most of these vacancy notices related to vacancies reserved for citizens from the new Member States, the fact that they were neither published in German in the German press, nor in French in the French press, was in line with the above principles.

21. Considering the publication of vacancy notices on the basis of the entire publicity given to them, and not on the basis of publication in one printed magazine alone, the Commission stated that it failed to see how its practice could be construed as an infringement of the equality of languages or the equal treatment of citizens and the Member States. The Commission also stated that it endeavours to strike a balance between the need for widespread but targeted publicity for the vacancies and cost-efficiency requirements. At the same time, it has to ensure equal access to the European Civil Service, in line with the above judgment of the General Court.

22. With its opinion, the Commission enclosed a table detailing its publicity measures taken in relation to 49 senior management positions.

23. In his observations, the complainant praised the Commission's transparent approach. At the same time, however, he argued that the table provided by the Commission demonstrated that its unequal publication practice was more far-reaching than he was previously aware.

24. The complainant also welcomed the greater transparency brought about by EPSO's website and the multilingual approach to vacancy notices. At the same time, he submitted that this rendered the costly and one-sided publication in the English printed media particularly unnecessary and incomprehensible.

The Ombudsman's assessment

25. It appears from its opinion that, apart from publishing vacancy notices on relevant websites, the Commission externally publishes vacancies for senior management posts in the Official Journal and in national and international printed media. While the parties appear to agree that publication in the Official Journal is mandatory, further publication in national and international printed media has a voluntary character.

26. The Ombudsman is not aware of any specific rules on linguistic requirements which apply to voluntary publications in national and international printed media. However, he is convinced that such a voluntary publication practice has to conform with Article 22 of the Charter of Fundamental Rights of the European Union, pursuant to which the Union shall respect cultural, religious and linguistic diversity. In this vein, the Ombudsman expresses the view that, where an institution's general external communication with the citizens is involved, it would indeed be ideal for the material intended for such purposes to be published in all official languages[2]. He also considers it essential that documents directed to persons outside the EU institutions should be available in as many languages as possible[3]. At the same time, one needs to bear in mind that, according to the case-law of the General Court, there is no general principle of EU law conferring a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances[4]. It is also clear from the case-law that the equality of languages is not an absolute principle of EU law[5].

27. The Ombudsman understands that the judgment in Case T-185/05, to which the Commission referred in support of its publication practice, fleshes out the relevant principles and, in the context of the publication of vacancy notices in the Official Journal, gives specific guidance on relevant linguistic requirements.

28. According to this judgment, there is no provision or principle of EU law requiring that publications in the Official Journal of vacancy notices for senior management posts should routinely be made in all the official languages[6]. However, measures adopted in order to regulate aspects of the procedure for recruiting senior management staff must not result in discrimination on grounds of language between the candidates for a specific post[7]. If the Commission decides to publish the full text of a vacancy notice for a senior management post in the Official Journal only in certain languages, it must, in order to avoid such discrimination, adopt appropriate measures to inform all potentially interested candidates about the vacancy notice concerned and the editions of the Official Journal in which it has been published[8]. Provided that this condition is met, publication in the Official Journal is not likely to lead to discrimination between the various candidates if the latter have an adequate knowledge of at least one of those languages and are thus able duly to acquaint themselves with the content of that notice[9]. On the other hand, the Court considered that publication of the text of a vacancy notice in the Official Journal in only some EU languages, when persons who have a knowledge only of other EU languages are entitled to submit an application, is likely, in the absence of other measures to enable that category of potential candidates duly to acquaint themselves with the content of that notice, to result in discrimination against them[10].

29. On the basis of the above, it is clear that the number of languages used for publication cannot be limited to such an extent that potential candidates can no longer duly acquaint themselves with the content of a vacancy notice[11]. According to the Court, this ability is a prerequisite for submitting an application in the best way[12]. Given the importance the Court attaches to the ability duly to acquaint oneself with a vacancy notice, it further follows that, as the Commission submitted, its practice of publication in printed media cannot be looked at in isolation, but instead has to be viewed against the background of the entire publicity the Commission gives to vacancy notices for senior management positions.

30. The complainant stated that he is less concerned about the use of the English language which, according to him, should be mastered by every European civil servant, but rather the fact that the Commission's practice implies that one would have to read The Economist as an English-language publication in order to obtain relevant information. However, it should be noted that vacancy notices are published in languages other than English on the 'Europa' and EPSO websites, as well as in the Official Journal. The Commission has furthermore explained that relevant information is published in the print media of the Member States concerned, including references to relevant websites containing the full texts of the vacancy announcements in languages other than English. In view of these circumstances, the Ombudsman considers that the complainant has not demonstrated that the Commission's current publication practice impinges on potential candidates' ability duly to acquaint themselves with the content of the notices.

31. The Ombudsman further considers that, in principle, the Commission's decision to publish vacancy notices for senior management positions in one or more printed media in the English language appears to be reasonable. The Commission pointed out that it publishes vacancy announcements in newspapers or magazines with an international target audience so as to reach potentially interested candidates living in other parts of the world. Given the status of English in international communication, and given further the need for cost-efficiency, the Ombudsman considers this argument to be persuasive.

32. Given that the Commission, as a rule, publishes vacancy notices not only in the English-speaking press, but also in the printed media of the Member States concerned, the complainant did not establish that there is a practice of the Commission to publish certain vacancies in the English-speaking weekly press, but not in the press of other countries or in other languages. It follows that the complainant did not substantiate his allegation of an infringement of the equality of languages. In view of this finding, there is no need for the Ombudsman to address the issue as to whether the Commission's publication practice indirectly affects the equality of citizens and the Member States.

33. Considering that the Commission, as a rule, already publishes vacancy notices in the printed media of the Member States concerned, the first aspect of the complainant's claim, namely, that the Commission should publish the vacancy notices in the printed media of all EU countries or languages, at least in the three working languages of the Commission, cannot succeed either. This is also true of the alternative aspect of his claim, namely, that the Commission should publish the vacancy notices only on the Internet. It appears appropriate to add that such practice, in any event, would be likely to lead to less transparency.

B. As regards the alleged failure to reply (the first aspect of the complainant's second allegation)

Arguments presented to the Ombudsman

34. The complainant alleged that the Commissioner responsible for multilingualism failed to reply to his e-mails within a reasonable period of time. In support of his allegation, he submitted that he had contacted the then Commissioner responsible for multilingualism by e-mail in June, July, September, and on 23 October 2008, but never received a reply. The Commission replied on 31 October 2008, but did not give any reasons for the delay, which violated the Commission's Code of Good Administrative Behaviour ('the Commission's Code').

35. In its opinion, the Commission pointed out that the Cabinet of the then Commissioner responsible for multilingualism immediately acknowledged receipt of the complainant's e-mail of 23 October 2008 and added that the subject-matter raised by the complainant came within the responsibilities of one of the Commission's Vice-Presidents. In an e-mail dated 11 November 2008, the complainant was informed that, following an initial examination of all incoming e-mail, receipt of his previous three e-mails addressed to the then Commissioner responsible for multilingualism could not be confirmed. The complainant was assured of a more in-depth analysis and promised a final reply. In an e-mail dated 14 November 2008, the complainant underlined that he had sufficient evidence to prove that he had sent the three e-mails in question. In mid-December, the Commission informed the complainant informally that it had inquired further into the matter, but could not find any evidence that it had received the said e-mails. The complainant took note of this information and stated that the matter was in any case before the Ombudsman.

36. In conclusion, the Commission submitted that it had acted immediately after receiving the complainant's e-mail of 23 October 2008. It added that the relevant Cabinet had replied to all incoming e-mails within the deadline set by the Commission's Code. All e-mails received were systematically registered in the appropriate IT system.

37. In his observations, the complainant argued that it was not credible that the Commission had not received the three e-mails preceding his e-mail of 23 October 2008. This was due to the following considerations:

• Already at the beginning of the term of office of the then Commissioner responsible for multilingualism, the latter did not reply to certain e-mails sent in relation to a different matter;
• The complainant held and submitted to the Ombudsman printed paper copies of the three e-mails here at issue;
• The complainant copied the three e-mails here at issue to his private e-mail account, where they were received without problem.

In view of these circumstances, he stated that there was at least prima facie evidence that the Commission had received his three e-mails. If this evidence were not to be accepted, this would mean that the standard of proof would be set excessively high, to the disadvantage of citizens. He suspected the real problem to be shortcomings in the Commission's archiving system.

38. At the same time, the complainant pointed out that the issue of the alleged failure to reply within a reasonable time was only of subordinate importance, given that his main concern was to hear the Ombudsman's views on the substantive issue raised in the framework of his first allegation.

The Ombudsman's assessment

39. The parties to the dispute are in agreement that, on 31 October 2008, the Commission replied to the complainant's e-mail dated 23 October 2008. This reply was not sent by the then Commissioner responsible for multilingualism, but one of the Commission's Vice-Presidents. The Ombudsman therefore, first, needs to consider whether the Commission's letter dated 31 October 2008 can be considered a reply to the complainant's aforementioned e-mail, in which he explicitly asked for the views of the Commissioner responsible for multilingualism. The Ombudsman will subsequently consider the timeliness of this reply. He will finally consider the issue regarding the three e-mails sent by the complainant prior to his e-mail of 23 October 2008.

40. Although the complainant requested a reply from the then Commissioner responsible for multilingualism, the Commission, in its letter dated 31 October 2008, explained that the external publication of vacancy notices for senior management posts came under the competencies of one of its Vice-Presidents. It went on to substantively address the concerns raised by the complainant. Given that one of the Commission's Vice-Presidents (i) replied, in agreement with the then Commissioner for multilingualism, (ii) explained the allocation of competencies and (iii) replied in substance to the complainant's concerns, the Ombudsman considers that the Commission's letter dated 31 October 2008 is a valid reply to the complainant's e-mail of 23 October 2008. The Ombudsman notes that the complainant himself, in an e-mail to the Commission dated 10 November 2008, stated that he considered the Commission's reply to be definitive and the discussion of the substantive issue to be closed.

41. As regards the timeliness of the Commission's reply, the Ombudsman recalls that, according to the Commission's Code, a reply to a letter addressed to the Commission shall be sent within fifteen working days from the date of receipt. In view of the fact that the Commission replied to the complainant's e-mail dated 23 October 2008 by letter of 31 October 2008, it is clear that the Commission complied with the relevant time-limit.

42. As regards the three e-mails that the complainant claims to have addressed to the Commission before the e-mail of 23 October 2008, the Ombudsman notes that the complainant submitted paper copies of these e-mails, from which it emerges that they were sent in June, July and September 2008. The Ombudsman has sympathy for the complainant's view that this, together with other elements, amounts to at least prima facie evidence that the Commission received these three e-mails. Nevertheless, while it appears certain that these e-mails were sent, one cannot be sure whether these e-mails were indeed received by the Commission.

43. Ascertaining whether or not the Commission indeed received these three e-mails would necessitate further inquiries by the Ombudsman. However, he notes that the complainant stated that this issue was of subordinate importance, and that his main concern was the substantive issue of the equality of languages. Given that the Commission, both in its letter dated 31 October 2008 as well as in its opinion submitted in the course of the inquiry, fully addressed the substantive issue raised by the complainant, the Ombudsman considers that further inquiries would not be justified as regards this aspect of the complaint.

C. Conclusions

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

There has been no maladministration in relation to the complainant's first allegation.

As regards his second allegation, no further inquiries are justified.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 2 July

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[1] Case T-185/05 Italy v Commission [2008] ECR II-3207.

[2] Decision of the European Ombudsman in case 871/2006/(BB)MHZ, paragraph 2.9.

[3] See the Ombudsman's Special Report to the European Parliament in complaint 1487/2005/GG.

[4] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 116.

[5] See Case C-361/01 Kik v OHIM [2003] ECR I-8283, paragraph 87. See also the Decision of the European Ombudsman in case 871/2006/(BB)MHZ, paragraph 2.9.

[6] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 115.

[7] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 127.

[8] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 130.

[9] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 131.

[10] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 135.

[11] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 152.

[12] Case T-185/05 Italy v Commission [2008] ECR II-3207, paragraph 136.