Strasbourg, 10 May 2007

Dear Mr O.,

On 5 May 2006, you made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO"), on behalf of "European Solidarity", a union representing staff of the European Commission.

On 21 June 2006, I forwarded the complaint to the Director of EPSO.

On 29 September 2006, EPSO sent an opinion on your complaint, which I forwarded to you with an invitation to make observations.

On 28 November 2006, you sent me your observations.

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

THE COMPLAINT

The complainant, "European Solidarity," is a union representing staff of the European Commission. According to the complainant, the European Personnel Selection Office ("EPSO") has decided that, in competitions for posts in the European institutions, tests to assess verbal and numerical reasoning skills and tests to assess specialist knowledge can be taken only in English, French or German. According to the complainant, this new policy applies to all competitions for posts in the European institutions, with the exception of certain specialised competitions, such as competitions for lawyer-linguists.

EPSO's decision to conduct certain tests in only English, French and German was discussed on several occasions in the inter-institutional Common Joint Committee in which the complainant's president, as a representative of one of the Staff Committees, also took part. During two of these meetings, on 12 July 2005 and 9 March 2006, the representatives of the Staff Committees criticised EPSO's intention to adopt this policy.

The complainant argued that, in accordance with Article 28(f) of the Staff Regulations(1), it is sufficient that candidates have a 'satisfactory' knowledge of a second language of the Communities. However, candidates whose mother language is not English, French, or German are required, in fact, to have a 'thorough' knowledge of one second language of the Communities in order to be successful in the tests. Therefore, the candidates whose mother language is not English, French or German have, according to the complainant, little chance of succeeding and are discriminated against.

Therefore, the complainant considered that, given the linguistic requirements which will be imposed by EPSO, the condition set out in Article 27 of the Staff Regulations(2) that recruitment be made on the broadest geographical basis, cannot be fulfilled. As a result, equal access to posts in the European institutions is not assured for all citizens.

The complainant was also of the view that it is much more difficult for candidates to give correct answers when taking tests in a language other than their mother language. For instance, in the case of legal posts, candidates cannot fully demonstrate their professional capacities if the answer requires the use of specific legal terminology in a language other than their mother language. According to the complainant, a candidate's mother language is normally the language in which the candidate has undertaken his or her studies or obtained relevant professional experience. It follows that EPSO's linguistic policy does not allow it to examine the abilities of candidates, and therefore to recruit the best professionals, as is required by Article 27 of the Staff Regulations(3).

The complainant argued that such a policy introduces a hierarchy as regards European languages. It also marginalises the cultural diversity of the European Union, which is embodied in the diversity of its languages.

According to the complainant, EPSO did not accept the Staff Committees' reservations. Instead, EPSO argued that its administrative resources did not allow it to organise selection tests to assess whether candidates had a thorough knowledge of one of the Community languages and a satisfactory knowledge of one of the Community working languages.

In its complaint to the European Ombudsman, the complainant alleged that, through the linguistic requirements that favour English, French and German, EPSO:

1. discriminates against citizens who have as a mother tongue a language which is not English, French or German; and
2. infringes Articles 27(4) and 28(5) of the Staff Regulations.

The complainant claimed that EPSO should ensure equal access to European competitions for all European citizens and should, therefore, change its requirements concerning the use of languages in the tests.

In its complaint to the Ombudsman, the complainant also noted that candidates require access to a computer with a broadband internet connection in order to register for an open competition. Given that this issue was already the subject of an on-going inquiry (3346/2004/ELB), the Ombudsman decided not to open another inquiry on the same subject. The complainant was informed accordingly.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

By introducing the requirement to take tests in either English, French or German EPSO treated all citizens equally. All the candidates, including those whose main language is English, French or German, are required to take tests in their second language and the second language should be different from the main language. In this respect, EPSO also referred to the Commission's Communication of 22 November 2005 on a new framework strategy for multilingualism (COM(2005)596 final), in which the Commission found that English, French and German are the three languages most commonly used as foreign languages by European citizens.

Furthermore, EPSO pointed out that, in practice, communication within the institutions occurs in English, French and German. EPSO stated that the requirement that candidates take tests in English, French or German is therefore justified in light of the candidates' future duties as officials. EPSO noted that successful candidates are called to exercise functions in a multicultural and multilingual environment, where the use of English, French or German as a second language is required by the very nature of the role officials are called upon to carry out.

In this context, EPSO pointed out that the multiplication of official languages resulting from the enlargement of the EU could affect the efficiency of work in the institutions and cause delays. For that reason, satisfactory knowledge of English, French or German appeared to be essential in order to ensure effective communication within the institutions. In EPSO's view, the linguistic regime of competitions should reconcile the principle of linguistic diversity with institutional and administrative order. According to EPSO, such an approach reflects the interests of the institutions.

EPSO also pointed out that 'complete' linguistic pluralism is unmanageable and is economically unsustainable. For that reason, the use of certain languages for internal communication is permissible since it is based on objective considerations related to the functional needs of the EU institutions. EPSO concluded that the language requirement in question reflects the reality of internal communication in the EU institutions.

Furthermore, EPSO took the view that the choice of some languages does not compromise the equal access of citizens of the EU to posts in the European institutions. The requirement in question applies equally to all European citizens as regards their choice of the second language in selection competitions.

EPSO also pointed out that the choice of languages in the present case does not limit the possibility that EPSO might require different language combinations in the future, should the needs of the service so require.

As regards the complainant's allegation that EPSO infringed Articles 27 and 28 of the Staff Regulations, EPSO took the view that the requirement concerning the knowledge of certain languages does not impede the recruitment of officials of the highest ability, efficiency and integrity. Further, it does not impede recruitment being carried out on the broadest possible geographical basis.

EPSO also drew attention to Case 22/75 Küster v Parliament(6), where the European Court of Justice ruled that the decision on the recruitment of an official may depend on his/her knowledge of a specific language, provided that that language is required in the interests of the service.

Finally, EPSO pointed out that, again in accordance with the settled case-law of the Community Courts, the appointing authority enjoys wide discretion when deciding upon the abilities required for posts and when determining the rules and conditions under which a competition is organised. EPSO added that the Staff Regulations do not prohibit the imposition, in the notice of competition, of more onerous requirements than the minimal requirements required by the Staff Regulations.

The complainant's observations

The complainant's observations may be summarised as follows.

The complainant stated that it did not intend to challenge the requirement that candidates have a 'satisfactory' knowledge of one among the three working languages of the institutions and the reasons for which such knowledge is required.

The complainant pointed out, however, that, in its view, knowledge of these languages should be examined only after the professional qualifications and verbal and numerical reasoning skills have been tested in the candidates' mother tongue. According to the complainant, knowledge of the main developments in European integration and Community policies could be tested in the complainant's second language and, in such a way, knowledge of that second language could also be examined. In the complainant's view, such an option is indeed in the interests of the service.

The complainant recalled that, in accordance with Article 28(f) of the Staff Regulations, an official may be appointed only on condition that he demonstrates a 'thorough' knowledge of one of the languages of the Communities and a 'satisfactory' knowledge of another Community language, to the extent necessary for the performance of his duties.

In the complainant's view, the requirement as regards a candidate's thorough knowledge of a language could only concern a candidate's mother tongue, while the requirement as regards a candidate's satisfactory knowledge of another language would, normally, concern a language acquired by the candidates as a foreign language. However, the requirement that candidates sit tests in English, French or German means that, to be successful, they must have an excellent knowledge of that one of these languages, which is their second language. Therefore successful candidates would, necessarily, need to have lived in an international environment.

According to the complainant, such a requirement hinders recruitment on the broadest possible geographical basis. The complainant pointed out, in this respect, that candidates whose families have been living in Belgium or Luxembourg for generations and who are nationals of other Member States than Belgium or Luxemburg are very often recruited. The real mother tongue of the majority of such candidates is French. Furthermore, some of these candidates cannot even speak the language of the Member State of which, for the purposes of the relevant competition, they have declared themselves to be citizens.

The complainant also presumes that a large number of candidates who have excellent professional skills, but who do not have a perfect knowledge of their second language, have been excluded from the competitions. The complainant presumes they would be eliminated because a large number of candidates would fail the pre-selection tests (that is, tests to check verbal and numerical reasoning) and/or the written tests to demonstrate professional skills since all these tests have to be taken in English, German or French. The complainant reiterates, therefore, its original argument that the requirement in question does not allow the recruitment of candidates with the best abilities.

The complainant also pointed out that the institutions provide new members of staff, after their recruitment, with language courses of an excellent standard. These courses allow staff to acquire the required competence in the working languages of the institutions.

The complainant went on to give an example of the recent competition organised by EPSO for the Office of Publications in which the tests were taken in any of the 23 official languages of the Communities. The tests concerned professional qualifications, questions related to "the culture of the Communities" as well as verbal and numerical reasoning skills. There were 7700 candidates from those Member States that had joined the EC/EU prior to 1 May 2004. Of these candidates, 260 were successful. There were 2400 candidates from those Member States which joined the EU on 1 May 2004. Of these candidates, 184 were successful. The complainant took the view that this example should be followed in other competitions and proves that competitions can take place in all 23 official languages.

THE DECISION

1 Preliminary Observation

The Ombudsman notes that the complainant states, in its observations, that it does not challenge the requirement that candidates have a 'satisfactory' knowledge of English French and German and the reasons for which such knowledge is required. The complainant goes on to point out, however, that knowledge of English French and German should be ascertained only after the professional qualifications and verbal and numerical reasoning skills of candidates have been tested (in the mother tongue of the candidates). The Ombudsman is, however, of the view that, in order to evaluate whether, for the purposes of carrying out certain tests designed to ascertain professional qualifications and verbal and numerical reasoning skills, the use of English, French and German constitutes discrimination and/or is contrary to the applicable rules, it is also necessary to evaluate whether requirements may be imposed as regards knowledge of specific languages.

2 Alleged discrimination

2.1 The complaint argues that the requirement that all candidates in open competitions organised by EPSO for posts in European institutions should pass certain tests in English, French or German discriminates against citizens who have as a mother tongue a language which is not English, French or German.

2.2 In summary, EPSO denies that any discrimination takes place given that: (i) the same requirement applies to candidates in all competitions; (ii) candidates whose main language is English, French or German must take the tests in another one of these languages; (iii) according to the Commission’s surveys, English, French and German are the three languages most spoken as a "foreign language" by European citizens. In this regard, EPSO referred to the Commission’s C ommunication of 22 November 2005 on a new framework strategy for multilingualism (COM(2005)596 final).

2.3 The Ombudsman notes that the complainant appears to state that a candidate whose main language (in the complainant's understanding, a candidate's mother language) is English, French or German may sit the tests in question in that main language. However, EPSO argues that a candidate whose main language is English, French or German must sit the tests in question in one of the other two languages, that is, that s/he cannot sit the tests in his/her main language.

With a view to clarifying the above factual discrepancy, the Ombudsman has examined a number of notices of competition(7). The Ombudsman notes that the notices of competition he has examined(8) did indeed include the requirement referred to by EPSO. That requirement states that a candidate who chooses English, French or German as his main language cannot sit the tests in question in his main language. Instead, the candidate must sit the tests in question in one of the other two languages. For the purposes of the present inquiry, the Ombudsman will, therefore, assume that EPSO's description of its policy is accurate.

2.4 Given that a candidate whose main language is English, French or German cannot sit the tests in question in his or her main language, but must do so in one of the other two languages, the Ombudsman concludes that candidates whose main language is not English, French or German are not treated in a less favourable manner than candidates whose main language is English, French or German.

2.5 The Ombudsman also notes the complainant's argument that only the candidates who have lived in an "international environment" could succeed in the competitions to which the language requirement under consideration applies. The Ombudsman is of the opinion that the manner in which candidates might have acquired the requisite knowledge of Community languages, whether through living in an "international environment" or otherwise (for example, through regular schooling), would not appear to be immediately relevant as regards whether the imposition of a language requirement constitutes discrimination. In any event, the Ombudsman notes that the complainant has not demonstrated that only the candidates who have lived in an "international environment" could obtain the requisite level of linguistic knowledge of German, French and English to permit them to succeed in open competitions.

2.6 The Ombudsman does not therefore consider that the complainant has succeeded in demonstrating that candidates whose main language is not English, French or German are discriminated against vis-à-vis candidates whose main language is English, French or German. The Ombudsman does not, therefore, find any instance of maladministration as regards this allegation.

3 Alleged breach of applicable rules

3.1 The complainant alleges that the requirement to take certain tests in English, French or German, rather than in a language of the Communities chosen by the candidate, infringes Articles 27(9) and 28(10) of the Staff Regulations. The Ombudsman understands the complainant to argue, in particular, that the requirement to sit certain tests to in English, French or German (i) will make it impossible to recruit officials of the highest standard of ability and efficiency on the broadest possible geographical basis, thereby infringing Article 27 of the Staff Regulations; and (ii) will require candidates to produce evidence of knowledge of their second language that is more than "satisfactory", thereby infringing Article 28(f) of the Staff Regulations.

3.2 EPSO takes the view that the requirement concerning the knowledge of certain languages does not impede the recruitment of officials of the highest ability, efficiency and integrity. Further, it does not impede recruitment from being carried out on the broadest possible geographical basis and from ensuring equal access to European posts.

EPSO explains that, in summary, the requirement to take tests in English, French or German is justified, given the needs of the service. EPSO points out that, within the institutions, internal communication in practice occurs in English, French or German. Therefore, knowledge of English, French or German is required by the very nature of the functions officials will be called upon to carry out if recruited.

Article 28(f) of the Staff Regulations

3.3 The Ombudsman notes that, according to Article 28(f) of the Staff Regulations, an official may be appointed only 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."

3.4 The Ombudsman recalls that it would not be in accordance with the applicable rules to appoint an official who does not meet the minimum conditions set out in Article 28(f) of the Staff Regulations. The Ombudsman notes, in this context, that it would not be in accordance with Article 28(f) of the Staff Regulations to appoint as officials candidates who do not, at least, produce evidence of a 'thorough' knowledge of one of the 23 Community languages, and a 'satisfactory' knowledge of another of the 23 Community languages.

3.5 While it would not be in accordance with the applicable rules to appoint an official who does not meet the minimum conditions set out in the Staff Regulations, Community case-law does not preclude the imposition of professional requirements that are more stringent than those reflected in the minimum conditions prescribed by the Staff Regulations, provided these more stringent professional requirements are justified by the interests of the service(11).

3.6 Given that Article 28(f) of the Staff Regulations refers to knowledge of languages "of the Communities", thereby implying that candidates may meet the minimum requirement as regards knowledge of languages by demonstrating, to the requisite standard, knowledge of any two Community languages, a policy whereby candidates are required to take certain tests in specific languages of the Communities will be stricter than the minimum conditions set out in Article 28(f) of the Staff Regulations. This more stringent professional requirement will comply with the applicable rules if it is justified by the interests of the service.

3.7 EPSO argues that the requirement to take tests in English, French or German is justified given that, in practice, internal communication within the European institutions occurs in English, French or German. The Ombudsman accepts that the need to ensure internal communication is an "interest of the service". The Ombudsman also accepts that, in a working environment characterised by the use of 23 official languages, complete linguistic pluralism, if applied to all internal communications, would be unworkable. Therefore, the Ombudsman accepts that it would be proportionate, in order to ensure efficient internal communication, to ensure that officials have knowledge of one or more "common" languages.

3.8 As regards whether the common languages should be English, French and German, the Ombudsman notes that the complainant does not challenge the specific choice of languages referred to in its complaint (namely, English French and German). Further, EPSO has pointed out that the choice of languages in the present case does not preclude the possibility that EPSO might require different language combinations in the future, should the needs of the service so require. In this context, it is unnecessary for the Ombudsman to examine, in this inquiry, whether the choice of English, French and German, to the exclusion of other possible language combinations, is justified.

3.9 Even if a requirement as regards knowledge of specific languages can be justified, it remains to be examined whether particular tests, such as those relating to professional qualifications and verbal and numerical reasoning skills, should be taken in these specific languages, or whether such tests should be taken in the candidates' main language.

3.10 T he 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). It follows from this wording that a candidate's knowledge of a second language can only be adjudged to be "satisfactory" if such knowledge is sufficient to allow the candidate to carry out his future duties as an official. If his future duties as an official require that technical knowledge and skills be applied through the medium of specific common languages, it would not necessarily exceed even the minimum requirement set out in Article 28(f) of the Staff Regulation (that is, that candidates demonstrate a "satisfactory" knowledge of another language of the Communities) if tests to demonstrate technical knowledge and skills are carried out in these specific common languages.

3.11 As regards compliance with Article 28(f) of the Staff Regulations, the Ombudsman finally notes the complainant's observation that some candidates cannot speak the language of the Member State of which, for the purposes of the relevant competition, they have declared themselves to be citizens. As noted above, it would be contrary to the minimum requirements set out in Article 28(f) of the Staff Regulations if candidates are not required to produce evidence of a thorough knowledge of one of the languages of the Communities. In such circumstances, the Ombudsman is of the opinion that tests of a candidate's main language should be sufficient to evaluate if a candidate does, in fact, have a thorough knowledge of his/her main language.

In this context, the Ombudsman finds it useful to recall that Article 21 of the EC Treaty provides that "[e]very citizen of the Union may write to [any of the Community institutions or bodies] in one of the [official languages] and have an answer in the same language." In view of the need to ensure that this fundamental right is respected, it is important that the institutions ensure that officials actually do have a thorough knowledge of their main language.

However, the Ombudsman notes that no evidence has been provided to support the view that the policy of EPSO implies that a candidate will not be required to demonstrate a thorough knowledge of his main language.

3.12 In light of the above, the Ombudsman does not consider that the complainant has succeeded in demonstrating that the policy of EPSO breached Article 28(f) of the Staff Regulations. The Ombudsman does not, therefore, find any instance of maladministration as regards this aspect of the complainant's allegation.

Article 27 of the Staff Regulations

3.13 Article 27 of the Staff Regulations states that "recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity." The complainant questions whether candidates of the highest standard of ability and efficiency will be chosen if tests to demonstrate technical knowledge and skills are not carried out in candidates' main language (which, in the complainant's view, is one's mother language). However, as has been noted above, it is not incoherent to consider that the need to ensure internal communication within the institutions can only be met by ensuring that officials have a "satisfactory" knowledge of one or more common languages, and that a "satisfactory" knowledge of a common language implies the ability to carry out duties through the medium of a common language. It would thus appear reasonable that evidence of an official's "ability" and "efficiency" could be based, at least in part, on his/her ability to use his/her technical knowledge and skills through the medium of a common language.

3.14 Article 27 of the Staff Regulations also states that the recruitment of officials of the highest standard of ability, efficiency and integrity should be made on the "broadest possible geographical basis." In the Ombudsman view, it cannot necessarily be presumed that a requirement to demonstrate knowledge of specific Community languages as a second language will impede recruitment on the "broadest possible geographical basis." In this respect, the Ombudsman notes that no evidence has been provided to support the view that the policy of EPSO implies that recruitment on the "broadest possible geographical basis" will be impeded.

3.15 In light of the above, the Ombudsman does not consider that the complainant has succeeded in demonstrating that the policy of EPSO breached Article 27 of the Staff Regulations. The Ombudsman does not, therefore, find any instance of maladministration as regards this aspect of the complainant's allegation.

4 Conclusion

On the basis of his inquiry into this case, the Ombudsman does not find any instance of maladministration by EPSO. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) Article 28(f) of the 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."

(2) Article 27 of the Staff Regulations states that: "[r]ecruitment shall be directed to securing for the institution the services of officials (...) recruited on the broadest possible geographical basis from among nationals of Member States of the Communities. (...)".

(3) Article 27 of the Staff Regulations states that: "[r]ecruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity (...)".

(4) In this connection, the complainant referred to the first sentence of Article 27 of the Staff Regulations which provides that: "[r]ecruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity recruited on the broadest possible geographical basis from among nationals of Member States of the Communities. (...)".

(5) In this connection, the complainant referred to point (f) of Article 28 of the Staff Regulations which provides 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."

(6) Case 22/75 Küster v Parliament [1975] ECR 1267.

(7) The complainant has not made references to specific notices of competition in support of its position.

(8) EPSO/AST/37/07 to recruit assistants in the field of communication and information (OJ 2007 C 45 A/3); EPSO/AD/94/07 to recruit administrators in the field of information, communication and the media OJ 2007 C 45 A/3); EPSO/AST/27/06 for assistants in the secretarial field having as their main language German (OJ C 173 A/3); EPSO/AST/29/06 for assistants in the secretarial field having as their main language English (OJ C 173 A/3); EPSO/AST/32/06 for assistants in the secretarial field having as their main language French (OJ C 173 A/3);EPSO/AST/37/07 to recruit assistants in the field of communication and information (OJ 2007 C 45 A/3); EPSO/AD/94/07 to recruit administrators in the field of information, communication and the media OJ 2007 C 45 A/3); and EPSO/AST/26-28-30-31-33-34-35-35/06 to recruit assistants in the secretarial field (OJ C 173A/3).

(9) The complainant refers to the first sentence of Article 27 of the Staff Regulations which states that: "[r]ecruitment shall be directed to securing for the institutions the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Communities."

(10) The complainant refers to Article 28(f) of the Staff Regulations which 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."

(11) Case C-108/88 Juan Jaenicke Cendoya v Commission [1989] ECR 1711, paragraph 24, and the case-law cited there.