Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano
Introduction: Language Differentiation in the EU
The EU already faces a considerable language challenge with 24 official languages recognized by Regulation n. 1/1958. While the EU Charter of Fundamental Rights allows citizens to communicate with EU institutions in their chosen language, the primary working languages are English, French, and German. However, all official EU documents necessitate translation into all 24 recognized languages.
This system, manageable until the 2004 expansion, has become increasingly strained. The sheer volume of languages creates a complex linguistic environment, especially for those unfamiliar with EU intricacies. Advocate-General Kokott (in C-566/10-P) even likened the situation to the Babel-fish from “The Hitchhiker’s Guide to the Galaxy”, highlighting certain member states’ desire for a universal translator within the EU.
Unsurprisingly, within the multilingual environment of the EU institutions, a challenge arose concerning potential language discrimination. Italy and Spain brought before the General Court, and subsequently the Court of Justice, cases concerning EPSO (the EU’s recruitment body) competitions. These cases alleged violations of the established linguistic regime outlined in Regulation n. 1/1958 (as amended), the Staff Regulations, and the Charter of Fundamental Rights.
1. Case Background
The Court of Justice judgments (http://curia.europa.eu/juris/liste.jsf?num=C-566/10&language=en) stemmed from the Italian Republic’s appeal of the General Court’s ruling in Joined Cases T-166/07 and T-285/07. The initial ruling dismissed claims of language discrimination in an EPSO competition, arguing that the competition had sufficient publicity without translation into every language and that limiting the second language selection to English, French, and German was not discriminatory.
Italy’s appeal (C 566/10-P) contended that the General Court erred in not extending the non-discrimination principle to EU hiring processes. Italy’s successful appeal influenced subsequent challenges against EPSO competitions by Italy and Spain in Joined Cases T-124/13 and T-191/13 (September 2015) and T-275/13 (December 2015). However, the Court of Justice’s stance on language-based non-discrimination in EU institutions and EPSO competitions remained unclear until 2012 (see paragraph 70 ss. in case T-166/07).
While EU institutions have the freedom to set language requirements to ensure staff competency, the implementation of the Amsterdam Treaty (specifically Article 18 of the TFEU) and the Charter of Fundamental Rights impacted the situation. These legal additions, particularly Directives 2000/43/EC (racial discrimination) and 2000/78/EC (discrimination on four additional grounds), combined with the Charter’s emphasis on EU institutions, limited the Court’s flexibility in applying Regulation 1/1958 and Staff Regulations to EPSO’s activities. The Commission was obligated to justify any deviation from the non-discrimination principle enshrined in Regulation 1/58.
2. Equality Review: Shifting Towards a Stricter Standard
These cases illustrate a shift in the Court of Justice’s approach to equality review. They mark a stronger emphasis on a strict interpretation of equality, where discrimination is assumed unless proven otherwise, moving away from the traditional “relational concept” that focused on comparing similar situations. While this strict approach is not novel in EU anti-discrimination law, its application to these cases highlights a trend where comparison takes a backseat, shifting the burden of proof to the accused.
Traditionally, equality judgments involved two stages: comparison and justification. The selection of an appropriate comparator was crucial in determining discrimination. However, in these cases (T-124/13, T-191/13, T-275/13, and C-566/10-P), there was no evident attempt to establish a comparator. Instead, the focus shifted directly to the justification, presuming the presence or absence of a legitimate “interest of service” to justify any deviation from the established linguistic regime. Paragraph 99 of the initial ruling (T-166/07 and T-285/07) presented a contrasting approach, employing comparison and analyzing the differences between individuals with varying language proficiencies.
This shift towards prioritizing justification means that the outcome hinges on how rigorously it is applied. While the EU’s linguistic regime offers little room for exceptions, relying solely on a presumed discrimination without comparison raises concerns, particularly in inter-institutional relationships. While this approach might be effective in uncovering subtle discrimination, its application in this context seems excessive.
3. Balancing “Interests of Service” Against Presumed Discrimination
The conflict between the EU’s stated linguistic regime and its institutions’ practices creates a challenge in applying anti-discrimination law. While the unwritten “golden rule” within EU institutions emphasizes fluency in a “working language” (English, French, or German) for effective communication, this concept does not feature in the Treaties or secondary legislation. Regulation 1/58 only allows institutions to establish their own linguistic regimes, a provision utilized successfully only by OHIM (the EU’s trademark agency).
The lack of a formally defined linguistic regime subjected the European Commission’s practices to scrutiny in the aforementioned cases. To justify deviation, the Commission had to demonstrate a legitimate need for the specific language requirements, supported by concrete evidence. The presumption of discrimination in EU anti-discrimination law places the burden of proof entirely on the accused. If proof is lacking, the justification for the potentially discriminatory action also falls on the individual or institution. The Commission’s argument for an “interest of service” was deemed insufficient without detailed evidence demonstrating the necessity of deviating from the existing linguistic regime. Despite attempts to substantiate the need for language selection in Case T-124/13, the Court and General Court deemed it inadequate given the fundamental importance of the non-discrimination principle and the established linguistic framework.
4. Examining the Impacts of the Judgments
The judgments highlight that EU institutions and EPSO must use all official languages in competition materials, and applicants are only required to demonstrate proficiency in two, regardless of which ones. However, this raises concerns about the practicality of this approach. Will individuals proficient in, for example, Italian and Polish be equipped to handle their duties effectively? Additionally, questions arise regarding the hiring practices of institutions outside the EPSO framework.
For instance, the Court of Justice itself requires strong French language skills for positions within its Research and Documentation DG. Can this requirement withstand scrutiny under the existing linguistic regime and the Court’s interpretation of equality? Until the issue of “working languages” is formally addressed by the institutions and member states, similar judgments are likely. This could further complicate the already intricate EPSO system and potentially slow down the hiring process, ultimately hindering much-needed generational renewal within EU institutions.
Barnard and Peers: chapter 3
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