Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano
Introduction: Language
differentiation in the EU
There is no need to create language differentiation in
Brussels as there was in the ancient Babel. There are already 24 official
languages, according to Regulation n. 1/1958, and the EU Charter of Fundamental
Rights protects the rights of EU citizens to address the EU Institutions in their
own languages. The working languages mostly used within the Institutions are
three: English, French and German; however, from a legal standpoint, all the
documents concerning the Institutions need to be translated in all the official
languages of the EU.
This was still manageable until the great enlargement
of 2004, but after that it has become increasingly difficult for the
Institutions to communicate in the plethora of different languages. This
creates quite a complex linguistic regime which could sound odd to a person who
is not confident with EU issues (surely not as much as the double seat of the European
Parliament). This has rightly brought Advocate-General Kokott (in C-566/10-P)
to quote the Babel-fish of the "Hitchhiker's
guide to galaxy" and to refer to the aspiration coming from certain Member states of having
within the EU Institutions the brand new version of this legendary beast.
So it was easily predictable that sooner or later,
in the franglais-friendly environment (with some solid German stronghold) of
the EU Institutions, one of the unlucky countries where these three languages
are not easily spoken would have attempted to challenge the validity of an act
of the Institutions on the ground that it was violating language discrimination.
This was precisely what occurred when Italy and Spain appealed in front of the
General Court, and then the Court of Justice, several EPSO (the
inter-institutional body in charge with the selection and recruiting of a
substantial part of the EU staff) competitions which appear to be waiving the
linguistic regime established since the creation of the European Community by
the Regulation n. 1/1958 (as successively amended), the Staff Regulations and the
Charter of Fundamental Rights.
1.
The facts of the cases at stake
The judgments of the Court arise from the
appeal, brought by the Italian Republic, of the judgement of the General Court
in Joined Cases T-166/07 and T-285/07, where the General Court dismissed
an action for annulment against an EPSO competition based precisely on
linguistic discrimination. The General Court held that there was no violation
of the principle of non discrimination on the ground of language (as it is
enshrined in the various EU legal instruments). In particular, the General Court
maintained that the Commission assured an adequate publicity of the competition
(while not translating the text in all official languages) and that there was
no proof of the fact that the limitation of the selection of the second
language to English, French and German was discriminatory.
The case was appealed in C 566/10-P on the ground
that the decision of the General Court was wrong in law, as it was failing to
consider that the duty not to discriminate on the ground of language was
extended also to the hiring procedure of the EU Institutions. The Italian
Republic won the appeal in the case, and that made easier for the General Court
to rule on subsequent appeals of EPSO competitions brought by Italy and Spain
in Joined Cases T-124/13 and T-191/13 (released in September 2015) and T-275/13
(released on 17 December 2015). However, (as it is testified
by the reasoning of the Court in paragraphs 70 ss. in case T-166/07) the case law
of the Court of Justice was quite vague, up to 2012, as regards the application
of the principle of non-discrimination on the ground of language to the EU
Institutions and to the specific case of EPSO competitions.
It was to a certain extent obvious that each
Institution, in this case the European Commission, was free to impose some
language requirements in order to assure that the members of the staff hired
were able to take up immediately the duties connected with their civil servant
status. However, since the entrance into force of the Amsterdam Treaty, which
provided the legal basis (now Article 18 of the TFEU), inter alia, for the twinned directives 2000/43/EC (concerning
race discrimination) and 2000/78/EC (concerning discrimination on four
other grounds), and the entrance into force of the Charter of Fundamental
Rights, the situation concerning the prohibition of discrimination has slightly
changed. The fact that the Charter of Fundamental Rights is addressed primarily
to the EU Institutions leaves very little discretion to the Court as to the
application of the regime expressed in Regulation 1/1958 and by the Staff
Regulations to the activity of the EPSO (an inter-Institutional body), and the
strict rules about the burden of proof in cases of discrimination imposed on
the Commission to justify each derogation from the general prohibition of
discrimination of which Regulation 1/58 is an expression.
2.
The equality scrutiny and the strict concept of equality
The reason why these cases are worthy of comment is
that they are a very useful example of the changing attitude towards equality
scrutiny in Court of Justice case law of the last few years. In particular,
they are a sign of the deeper implementation at the level of judicial
protection of a strict notion of equality (in which equality is presumed,
unless the contrary is proved), which seems to leave apart the more traditional
"relational concept" of equality (where, on the contrary, much more
attention is devoted to the selection of the appropriate comparator). One would
say, nothing new. The regime of anti-discrimination law in the EU after
Amsterdam is built in this way: the discrimination is presumed, unless the
contrary is proved. But the fact that as a general trend in anti-discrimination
law there is no comparison as such and that the structure of the equality
judgment switches straight to the justification regime implies that the proof
become increasingly difficult.
As to the traditional understanding of the notion of
equality, the structure of the judgment has always been clearly divided in two
main different steps: comparison and justification. The comparison implies the
choice of the appropriate comparator, and, if the situation of the people
subjected to the equality scrutiny is different from the one of the comparator,
then there is no discrimination. In these cases (T-124/13, T-191/13 and T-275/13,
but also in C-566/10-P) there is no evidence of the fact that the Court of
Justice has made the choice of selecting an appropriate comparator. It is only
presumed, positively or negatively, that there is no interest of service justifying
a derogatory linguistic regime for the European Institutions. On the other
side, if one looks at paragraph 99 of the decision in joined cases T-166/07 and
T-285/07, which was the basis of the appeal of the first case (C-566/10-P), one
find the opposite approach: a more detailed analysis and an evaluation of the
differences (a comparison) between the case of people speaking multiple
languages and people speaking only one.
From this point of view, the switching of the
balance of the equality scrutiny to the justification step means that the outcome
of these cases turns upon the strict approach to justification. In this case it
is undeniable that there is a Regulation and a linguistic regime applicable to
the EU Institutions, which leaves very little room for derogations. However,
are we really sure that equality cases should presume discrimination and go
straight to the justification issue, without indulging in a comparison? This
approach is surely extremely useful when it comes to a situation of
discrimination in which it is difficult to unveil the discriminatory behaviour,
but in term of costs-benefit approach, to use it in the inter-Institutional
relationship is like using a tank to kill a bee.
3.
The “interests of service” versus the presumption of discrimination and the
justification regime
However, it cannot be denied that there is a
problem, from the viewpoint of the application of anti-discrimination law, in
the apparent inconsistency between the language regime of the EU Institutions,
written in the Treaties, and the behaviour of the same Institutions. The EU Institutions
apply in the recruitment procedure a golden rule, which implies (reasonably
from the viewpoint of people who have ever worked inside the EU) that every
single civil servant should be able to communicate effectively, other than in
his or her native language, in one of the so-called “working languages”
(English, German and French). However, in the EU Treaties as well as in the
various pieces of secondary legislation there is no sign of these “working
languages”, other than the possibility set out in Regulation 1/58 for the Institutions
to approve their own linguistic regime (note that the only EU body that has
approved a specific linguistic regime which has passed the Court’s scrutiny is
OHIM, the EU trademark agency).
Not one of the Institutions has so far introduced
such a regime, and the outcome is that the linguistic regime of the European
Commission had, in the three cases examined, been scrutinised for justifications.
During the justification scrutiny what should be proved is that, provided that
the aim to be reached by the Institutions is legitimate, there is an evident
need for the application of a specific derogatory linguistic regime, relying on
several pieces of quantitative and qualitative evidence.
In fact, the presumption of discrimination which
lies at the core of the actual EU anti-discrimination legislative framework,
and which is applied in the three cases by the Court, leaves the proof of the
absence of the discrimination entirely on the perpetrator of the discriminatory
behaviour. And in case that the proof is not available, also the proof of the objective
justification lies on the person, or on the Institution, which is upholding the
discriminatory behaviour. From this perspective here is where the apparent
weakness of the argument of the Commission in these judgments lies: the
Commission thinks that the existence of an interest of service is sufficient to
escape the proof of the absence of the discrimination. The Court replies that
unless specific and detailed evidences are produced, which demonstrate the
contrary, the “interest of service” does not allow per se the Commission to derogate from the linguistic regime. Interestingly,
the Commission attempted, in particular in Case T-124/13, to provide evidence
on the need for the selection of a certain number of languages within the
interest of the service. The Court first, and the General Court later on, have
however considered this argument insufficient, on the ground that the principle
of non discrimination, of which the linguistic regime of the Institutions is an
application, has a specific structural importance for the survival of the whole
EU machinery.
4.
Costs and benefits of the outcome of the judgments at stake
At the end of the day, what stands out of the crowd in
these judgments is the fact that the EU Institutions, and the EPSO, should
translate in all the official languages of the EU the text of the exams of the competitions,
and that each single EU citizen can apply to the competition provided that he
or she speaks at least two EU languages, no matter which languages they are.
However, it is easy to doubt that an applicant who is able to find his way
through the tricky EPSO competition will immediately be able to take up the
duties connected to his service if he or she only speaks, for instance, Italian
and Polish. And what can be said about the linguistic regime of the recruiting
procedure applied by other Institutions outside the EPSO scheme?
For instance, the Court of Justice itself requires a
very good knowledge of French for its positions available within the Research
and Documentation DG, implying also the effective ability to write in this
language. Can such a requirement resist the linguistic regime applicable to the
EU Institutions and the equality scrutiny applied by the very same Court? These
are all very interesting questions, but until the Institutions and the Member
States effectively regulate the issue of the working languages, it is highly
likely that we will see more and more judgments like these, having as a main
effect to paralyze the already complex machine of the EPSO, and to render even
slower the process of hiring new staff, delaying once more the crucial
generational turnover within the EU Institutions.
Barnard and Peers: chapter 3
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