6 July 2022 (*1)

(Civil service – Officials – Competition EPSO/AD/363/18 for the recruitment of administrators in the field of taxation – Limitation of the choice of the second language in which tests are conducted – Non-inclusion on the reserve list – Plea of illegality – Admissibility – Discrimination based on language – Special nature of the posts to be filled – Justification – Interests of the service – Proportionality)

In Case T‑631/20,

MZ, represented by M. Velardo, lawyer,

applicant,

European Commission, represented by T. Lilamand, D. Milanowska and A.-C. Simon, acting as Agents, and by A. Dal Ferro, lawyer,

defendant,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of J. Svenningsen (Rapporteur), President, R. Barents, C. Mac Eochaidh, T. Pynnä and J. Laitenberger, Judges,

Registrar: P. Núñez Ruiz, Administrator,

having regard to the written part of the procedure,

further to the hearing on 1 March 2022,

gives the following

By her action based on Article 270 TFEU, the applicant, MZ, seeks annulment of the decision of 10 December 2019 by which the selection board for competition EPSO/AD/363/18 refused, after review, to include her name on the reserve list for the recruitment of administrators at grade AD 7 in the field of taxation.

On 11 October 2018, the European Personnel Selection Office (EPSO) published in the Official Journal of the European Union the notice of open competition, based on qualifications and tests, EPSO/AD/363/18 for the recruitment of administrators (AD 7) in the fields of customs and taxation (OJ 2018 C 368 A, p. 1; ‘the competition notice’), to draw up two reserve lists from which the European Commission, mainly the Directorate-General (DG) for Taxation and Customs Union, would recruit new members of the civil service as administrators.

As a condition of eligibility for the competition, the competition notice required inter alia knowledge of at least two official EU languages. This condition of eligibility was formulated as follows:

‘You must have knowledge of at least 2 official EU languages; one at minimum C1 level (thorough knowledge) and the other at minimum B2 level (satisfactory knowledge).

Please note that the minimum levels required above must apply to each linguistic ability (speaking, writing, reading and listening) requested in the application form. These abilities reflect those of the Common European Framework of Reference for Languages …

In this notice of competition we will refer to the languages as:

– Language 1: language used for the computer-based Multiple-Choice Question tests.

– Language 2: language used for the selection based on qualification (Talent Screener), for the assessment centre tests and for communication between EPSO and the candidates who have submitted a valid application. This must be different from language 1.

Language 2 must be English or French.’

4.4

The competition notice gave the following reason for the limitation of the choice of second language to English or French:

‘Successful candidates recruited for these particular fields are required to have a satisfactory knowledge (minimum B2 level) of English or French. While knowledge of additional languages may be an advantage, most Commission departments in Customs and Taxation have recourse to English or French for analytical work, internal communication as well as communication with external stakeholders, publications and reports, legislation, or economic papers, as mentioned under “What tasks can I expect to perform?” and in Annex I. Therefore, a satisfactory knowledge of English or French is essential. Consequently, a successful candidate not having a satisfactory knowledge of English or French would not be immediately operational.’

5.5

Under the heading ‘How will I be selected?’, in point 5, it is stated that the assessment centre tests would be in four parts, namely a general competency-based interview, a field-related interview, a group exercise and a case study. The eight general competencies (‘analysis and problem-solving’, ‘communication’, ‘delivering quality and results’, ‘learning and development’, ‘prioritising and organising’, ‘resilience’, ‘working with others’, ‘leadership’) were each scored out of 10 points and field-related competencies out of 100 points. The pass marks were 3/10 per competency and 40/80 in total for general competencies and 50/100 for field-related competencies.

On 10 November 2018, the applicant applied as a candidate in that competition in the field of taxation.

7.7

The tasks which successful candidates in the competition in the field of taxation are likely to perform are described in the competition notice as follows:

‘As a policy officer in a unit in the indirect or direct tax directorate of [the DG for Taxation and Customs Union] or in one of the fiscal state aid units of [the DG for Competition], you will be expected to be immediately operational and, with the assistance of your hierarchy, you will be expected to draft documents on your subject matter and attend meetings with Member States and other stakeholders to explain/advance the position of the European Commission. You will be expected to represent your unit at meetings with other European Commission services and reply to questions from the public and Members of the European Parliament. You will also be expected to contribute to briefings for your Commissioner, Director-General or Director as necessary. Depending on the unit in which you are working, you will be expected to draft legislation, decisions, working documents or economic papers.’

Furthermore, Annex I to the competition notice, entitled ‘Duties’, sets out those duties as follows:

‘The general role of administrators (AD 7) in the taxation field is to support the decision-makers in fulfilling the mission of their institution, provide legal, economic and/or statistical analysis required for the initiation, development, management and/or evaluation of EU policies in direct and/or indirect taxation, including transfer pricing or fiscal state aid.

Successful candidates will be called upon to analyse direct and/or indirect taxation issues, make a legal assessment under the applicable tax or state aid rules and procedures, analyse their impacts and present legal drafts or prepare economic analysis of those issues. They may also be asked to develop communication activities on their area of work, take part in conferences and other events, to perform coordination duties and negotiation at international level, related to the tax policy of the European Union [in the areas of economic analysis and evaluation of taxes, direct and indirect taxation, VAT and other indirect taxes (environment, transport, energy and excise duties)] …’

9.9

The applicant, an Italian national, chose Italian as language 1 and French as language 2 (‘the second language’), the language she used to complete her application. At this point she stated that she had knowledge of French at the same level as Italian, namely ‘C2’ level in accordance with the European Framework of Reference for Languages, except for writing, where she stated that she had knowledge of French at ‘C1’ level.

10.10

On 4 April and 4 June 2019, the applicant participated in the assessment centre tests, consisting in a case study, a group exercise and two individual interviews with the selection board. Those tests were conducted in the second language.

11.11

By letter of 17 July 2019, the chairperson of the selection board informed the applicant of the selection board’s decision not to include her name on the reserve list on the ground that she had not obtained the pass mark in each of the tests (‘the decision of 17 July 2019’). That letter was accompanied by a competency passport, which showed inter alia that the applicant obtained an eliminatory score of 37/80 in the assessment of the eight general competencies and a score of 80/100 in the assessment of the competencies relating to her chosen field.

12.12

By letter of 27 July 2019, the applicant submitted to the selection board a request for review, drafted in French, which was rejected by decision of the selection board of 10 December 2019 (‘the decision of 10 December 2019’).

13.13

By email of 9 March 2020, the applicant submitted to the Appointing Authority, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), a complaint drafted in Italian.

14.14

By email of 1 April 2020, EPSO informed the applicant that, under point 4.3.1 of Annex III to the competition notice, her complaint should have been submitted in the second language, namely French, and that her complaint, which was drafted in Italian, would not therefore be considered unless a translation into French was sent to the Appointing Authority by 1 May 2020.

15.15

By email of 9 April 2020, the applicant sent the Appointing Authority a French translation of her complaint, which was rejected by decision of the Appointing Authority of 8 July 2020 (‘the decision rejecting the complaint’).

II. Forms of order sought

16.16

The applicant claims that the Court should:

–annul the decisions of 17 July and 10 December 2019 and the decision rejecting the complaint;

–order the Commission to pay the costs.

17.17

The Commission contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

III. Law

According to the case-law, where a candidate in a competition seeks review of a decision taken by a selection board, it is the decision taken by the latter after the review of the candidate’s situation that constitutes the act adversely affecting him or her within the meaning of Article 90(2) or, where applicable, Article 91(1) of the Staff Regulations. The decision taken after the review therefore replaces the selection board’s original decision (see judgment of 5 September 2018, Villeneuve v Commission, T‑671/16, EU:T:2018:519, paragraph 24 and the case-law cited).

19.19

In the present case, the act adversely affecting the applicant is the decision of 10 December 2019, taken after the review, not to include her name on the reserve list for the competition (‘the contested decision’).

As regards the claims formally directed against the decision rejecting the complaint, it should be recalled that the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8), except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).

21.21

In this case, because it rejects the complaint and confirms the selection board’s decision not to include the applicant’s name on the reserve list, the decision rejecting the complaint does not have content independent of the contested decision. In that situation, the lawfulness of the contested decision must be examined taking into consideration the statement of reasons contained in the decision rejecting the complaint, those reasons being considered to be identical to those for the contested decision (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 43 and the case-law cited).

The applicant relies on five pleas in law in support of her action. The first plea in law raises an objection of illegality against the language regime laid down by the competition notice, the second alleges an infringement of the principle of stability of the selection board, the third alleges an infringement of the competition notice, the fourth alleges an infringement of the fifth paragraph of Article 5 of Annex III to the Staff Regulations and the fifth alleges a failure to state reasons.

23.23

In the first plea in law, the applicant claims the illegality of the provisions of the competition notice which, first, limit to French and English the choice of the second language in which the assessment centre tests are conducted (‘the limitation at issue’) and, second, require candidates to use that language in their interactions with EPSO (‘the requirement at issue’).

24.24

The Commission contends that this objection of illegality should be rejected as inadmissible and, in any event, unfounded.

25.25

Consideration should be given to the objection of illegality against the competition notice separately in so far as it lays down, on the one hand, the limitation at issue and, on the other, the requirement at issue in the light of their respective scopes.

(a) Admissibility of the objection of illegality against the competition notice in so far as it lays down the limitation at issue

26.26

The Commission, relying on the case-law resulting from the judgment of 14 December 2017, PB v Commission (T‑609/16, EU:T:2017:910), asserts that the objection of illegality against the limitation at issue should be rejected as inadmissible.

It maintains in this regard that, in the absence of a close connection between the reasoning of contested decision and the first plea in law alleging the illegality of the competition notice, that plea in law should be rejected on the ground that it is out of time. According to the Commission, in order to be entitled to challenge the provisions establishing the language regime for the competition tests, a candidate should submit a complaint against the competition notice within three months of its publication.

The Commission argues that the contested decision is not based on elements closely connected with the language regime for the tests, but only on the insufficient score given to the applicant in the assessment of her general competencies, such that there is not a close connection between the reasoning of contested decision and the plea in law alleging the illegality of the competition notice.

It adds that the significant areas of weakness identified in the tests in certain general competencies would also have been observed if the applicant had sat the tests in another language. In any case, the applicant has not presented specific evidence to demonstrate that she was prejudiced because she used French in the tests or that she could have obtained better results if she had sat those tests in another language.

The applicant disputes those arguments.

As a preliminary point, it should be noted that Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (see, to that effect, judgments of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 75; of 17 December 2020, BP v FRA, C‑601/19 P, not published, EU:C:2020:1048, paragraph 26; and of 22 April 2004, Schintgen v Commission, T‑343/02, EU:T:2004:111, paragraph 26).

In the present case, in so far as the plea of inadmissibility raised by the Commission is based on the premiss that the applicant did not challenge the competition notice in good time, that is to say, within three months of its publication, it should be examined, first of all, whether such a possibility was actually open to the applicant.

In this instance, the admissibility of an action for annulment submitted by the applicant against the competition notice in so far as it lays down the limitation at issue cannot be considered to have been evident. A competition notice may, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the application of one party, it constitutes a decision adversely affecting him or her within the meaning of Articles 90 and 91 of the Staff Regulations (see, to that effect, judgment of 19 June 1975, Küster v Parliament, 79/74, EU:C:1975:85, paragraphs 5 to 8; and order of 24 June 2013, Mateo Pérez v Commission, F‑144/11, EU:F:2013:86, paragraph 46 and the case-law cited).

The limitation at issue does not have the effect of excluding the application of a candidate like the applicant who considers that she has knowledge of at least two official EU languages at the levels required by the competition notice. Thus, in the absence of imposing conditions excluding the application of the applicant, the competition notice does not constitute a decision adversely affecting her and could not therefore be the subject of an action for annulment brought by the applicant.

Having regard to the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, according to which a measure which may not be the subject of an action for annulment under Article 270 TFEU must be able to be the subject of an objection of illegality under Article 277 TFEU, the admissibility of the objection of illegality against a measure of general application is, in such a case, subject only to the double condition that the individual measure being challenged was adopted in direct implementation of the measure of general application and that the applicant must have an interest in challenging the individual decision which is the subject of the main action (see, to that effect, judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 36 and the case-law cited).

As regards the first condition in respect of whether the contested decision was adopted in direct implementation of the competition notice, it should be stated that the Court of Justice has accepted that the provisions of an act of general application that constitute the basis of the individual decision or that have a direct legal connection with such a decision may legitimately form the subject matter of an objection of illegality (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 69 and the case-law cited).

It is sufficient to note in this regard that, as the competition notice forms both the legal basis and the basis of assessment for the selection board (see judgment of 14 December 2018, UR v Commission, T‑761/17, not published, EU:T:2018:968, paragraph 65 and the case-law cited), that notice, while not, strictly speaking, the legal basis of the contested decision, is nonetheless one of the acts constituting the legal framework in which the contested decision had to be adopted.

Furthermore, as the contested decision was adopted using the procedure laid down in the competition notice, it follows that the limitation at issue also has a direct legal connection with the contested decision (see, to that effect, judgment of 14 July 2021, Carbajo Ferrero v Parliament, T‑670/19, not published, under appeal, EU:T:2021:435, paragraph 56).

As for the second condition concerning the interest in bringing proceedings, and assuming that the Commission’s arguments can be understood as challenging the applicant’s interest in seeking annulment of the contested decision on the ground that the limitation at issue is illegal, it is true that an applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him or her personally (judgment of 30 June 1983, Schloh v Council, 85/82, EU:C:1983:179, paragraph 14).

However, this requirement simply means that the applicant’s claims are susceptible of justifying an annulment which would be of advantage to the applicant, that is to say, in these circumstances, the objection of illegality is likely, if successful, to procure an advantage for the party raising it (judgment of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 132). According to the case-law relied on by the Commission, it is in any event only where there is no close connection between the reasoning of the contested decision and the plea of unlawfulness in relation to the competition notice that the plea must be declared to be inadmissible (see, to that effect, judgment of 14 December 2017, PB v Commission, T‑609/16, EU:T:2017:910, paragraph 29 and the case-law cited).

On this point, at the risk of imposing a burden of proof on her which it is impossible to discharge, the applicant cannot be required to demonstrate that, pursuant to a judgment annulling a measure under Article 266 TFEU, she would necessarily obtain a better score in the assessment centre tests, but only that such a possibility is not ruled out, it being borne in mind, moreover, that it is not for the Court to substitute its assessment for that of the selection board.

It should be stated in this regard that the competition notice did not require candidates to choose the language in which they are most competent as language 1. Therefore, as the applicant asserts, the preference given to English or French, to the exclusion of all the other official EU languages, is likely to have conferred an advantage in the tests on candidates for whom one of those two languages is the language in which they are most competent, to the detriment of the other candidates for whom that is not the case.

It has already been ruled that the level of knowledge of the candidates’ second language is inevitably and necessarily reflected in the tests to assess the general and specific competencies as provided for by the competition at issue which are sat in that language (judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, under appeal, EU:T:2021:323, paragraph 55).

In this connection, it may be noted in particular that it is apparent from the sheets used for the assessment of general competencies, submitted by the Commission in response to a measure of organisation of procedure, that knowledge of a language may affect the marks for candidates’ general competencies.

In particular, in the general competency-based interview, the selection board had to take into account, in assessing the ‘communication’ competency, any difficulty for the candidate in speaking comprehensibly or sufficiently clearly. The same applies to the assessment of that competency in the case study, as it is stipulated that the selection board awards a lower score to candidates if it considers that ‘the language, vocabulary, style and register used are inappropriate’.

Furthermore, as was noted in paragraph 9 above, the applicant herself stated in her application form that her written proficiency in French is not as strong as in Italian, the language in which she is most competent, and it cannot therefore be ruled out that the limited knowledge of that second language could have affected her mark in the written test.

In these circumstances, it cannot automatically be excluded that the applicant, who obtained a much lower overall mark for general competencies, namely 37/80, than for field-related competencies, namely 80/100, and obtained a mark of 4.5/10 in the assessment of the ‘communication’ competency, which was also lower than the mark for the assessment of field-related competencies, would have had a chance of obtaining a better mark if she had been able to sit the tests in her native language, namely Italian. As is clear from paragraphs 44 and 45 above, knowledge of a language, going beyond technical terminology in a specific field, is especially likely to affect the marks for candidates’ general competencies. Therefore, the large discrepancy between the applicant’s mark for general competencies and her mark for field-related competencies is a specific indication that this could have been the case here.

In the light of the foregoing, it must be concluded that the objection of illegality against the competition notice in so far as it lays down the limitation at issue is admissible.

(b) Admissibility of the objection of illegality against the competition notice in so far as it lays down the requirement at issue

49

The Commission maintains that the objection of illegality against the competition notice in so far as it lays down the requirement at issue is inadmissible because the applicant has no interest in claiming the alleged illegality. It asserts that the contested decision is not contingent on whether the applicant was required to communicate with EPSO in the second language or whether she had to submit her complaint in French.

50

The applicant disputes those arguments.

51

It must be borne in mind that the scope of an objection of illegality must be limited to what is essential to the outcome of the dispute (judgment of 10 June 2020, Oosterbosch v Parliament, T‑131/19, not published, EU:T:2020:250, paragraph 54). Since the purpose of Article 277 TFEU is not to allow a party to contest the applicability of any act of general application in support of any action whatsoever, the act the legality of which is called in question must be applicable, directly or indirectly, to the issue with which the action is concerned (see judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 68 and the case-law cited).

52

In this regard, irrespective of the fact that Article 20(2)(d) TFEU and Article 41(4) of the Charter of Fundamental Rights establish the right to address the institutions of the Union in any of the Treaty languages and to obtain a reply in the same language, it need only be stated that the requirement at issue did not affect, directly or indirectly, the content of the contested decision. The selection board’s decision not to include the applicant’s name on the reserve list following the tests has no connection, directly or indirectly, with the requirement to communicate with EPSO in the second language for the competition.

53

In the absence of any connection, and a fortiori any direct legal connection, between the contested decision and the requirement at issue, that decision cannot therefore be considered to constitute a measure implementing the competition notice in so far as it lays down that requirement.

54

The objection of illegality against the competition notice in so far as it lays down the requirement at issue must therefore be rejected as inadmissible.

55

In the light of all the foregoing, the first plea in law, raising an objection of illegality against the competition notice, must be declared admissible only in so far as it concerns the limitation at issue.

The substance of the objection of illegality against the competition notice in so far as it lays down the limitation at issue

56

In support of the objection of illegality, the applicant asserts that the limitation at issue amounts to discrimination based on language prohibited by Article 1d of the Staff Regulations. In this connection it must be ascertained, first, whether the limitation at issue gives rise to a difference in treatment based on language and, if so, second, whether that difference in treatment is justified by a legitimate objective and, lastly, whether it is proportionate to the attainment of any legitimate objective pursued.

(a)

57

The applicant asserts, in essence, that the limitation at issue placed her at a disadvantage in the tests compared with candidates whose native or main language, that is to say, the language in which they are most competent, is English or French.

58

The Commission disputes those arguments, claiming, in essence, that knowledge of a language at a higher level than the minimum level required by the competition notice is not among the knowledge and competencies covered by the assessment centre tests.

59

It should be noted as a preliminary point that the first paragraph of Article 1d of the Staff Regulations provides that, in the application of the Staff Regulations, any discrimination based on any ground such as, inter alia, language is prohibited.

60

In the present case, requiring candidates to choose the second language for the competition from English or French alone constitutes a difference in treatment based on language which is, in principle, prohibited under that provision.

61

It should be noted that the competition notice did not prevent candidates for whom English or French is the language in which they are most competent from choosing that language as the second language. It follows that, as was stated in paragraph 42 above, the preference given to English or French, as the second language, is likely to have conferred an advantage in the assessment centre tests on candidates for whom one of those two languages is the language in which they are most competent, to the detriment of the other candidates who, while having a sufficient knowledge of at least two official EU languages, did not have the option to sit the tests in the language in which they are most competent.

62

It is nevertheless clear from the first sentence of Article 1d(6) of the Staff Regulations that limitations of the principle of non-discrimination are possible provided they are ‘justified on objective and reasonable grounds’ and they are aimed at legitimate objectives in the general interest in the framework of staff policy.

(b)

Justification of the discrimination based on language

65

The applicant maintains that it is for the Appointing Authority to prove that the limitation at issue is justified and proportionate to the real needs of the service by invoking reasons connected with the requirements of the positions to be filled which can be reviewed by the judicature and understood by candidates.

66

It asserts in this regard that the justification put forward by the Appointing Authority in the competition notice of enabling recruitment of officials who are immediately operational does not make clear the connection between the limitation at issue and the nature of the duties to be performed, as described in Annex I to the competition notice. It cannot be ruled out that some tasks can be performed in languages such as Italian. Furthermore, in the light of its general wording, the limitation at issue also cannot be justified by the nature of the assessment centre tests.

67

As regards the information produced by the Commission in the course of the proceedings, the applicant submits that it is not relevant and, in any event, that it is not established that English and French are the languages most used in the performance of duties in the positions to be filled, to the exclusion of all the other EU languages.

68

The Commission disputes those arguments, claiming, in essence, that the limitation at issue is justified by two legitimate objectives, which are supported by evidence, consisting of a table setting out the languages spoken by staff members of the DG for Taxation and Customs Union and the DG for Competition, tables setting out the languages used in the performance of duties by staff members of those directorates-general and vacancy notices published by those directorates-general between 1 January 2016 and 9 January 2020.

69

It should be noted as a preliminary point that, although Article 28(f) of the Staff Regulations provides that an official may be appointed only on condition that he or she produces evidence of a thorough knowledge of one of the languages of the Union and of a satisfactory knowledge of another language of the Union ‘to the extent necessary for the performance of his [or her] duties’, that article does not state the criteria which may be taken into consideration in order to limit the choice of that language among the official languages mentioned in Article 1 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I Volume 1952-1958, p. 59.), as amended (see judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 85 (not published and the case-law cited), and order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 55 and the case-law cited).

70

Moreover, no such criteria are laid down in Article 27 of the Staff Regulations, which provides in its first paragraph, without referring to knowledge of languages, that ‘recruitment 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 Union’ and that ‘no posts shall be reserved for nationals of any specific Member State’. The same applies to the second paragraph of that article, which merely states that ‘the principle of the equality of Union’s citizens shall allow each institution to adopt appropriate measures following the observation of a significant imbalance between nationalities among officials which is not justified by objective criteria’, specifying, in particular, that ‘those appropriate measures must be justified and shall never result in recruitment criteria other than those based on merit’.

71

While under Article 1(1)(f) of Annex III to the Staff Regulations the competition notice may state, where applicable, the knowledge of languages required in view of ‘the special nature of the posts to be filled’, that provision does not constitute any kind of general authorisation to limit the choice of second language in a competition to a restricted number of official languages among those mentioned in Article 1 of Regulation No 1 (see, to that effect, judgment of 15 September 2016, Italy v Commission, T‑353/14 and T‑17/15, EU:T:2016:495, paragraph 86 (not published and the case-law cited); see also order of 5 September 2019, Italy v Commission, T‑313/15 and T‑317/15, not published, EU:T:2019:582, paragraph 56 and the case-law cited).

72

In the present case, the Commission has stated that the limitation at issue is justified, first, as is clear from the General guidelines of the College of Heads of Administration on the use of languages in EPSO competitions, which forms Annex II to the General rules governing open competitions, by the nature of the assessment centre tests and, second, as is clear from the content of the competition notice reproduced in paragraph 4 above, by the objective of officials being immediately operational.

(1)

Justification relating to the nature of the assessment centre tests

73

According to the General guidelines of the College of Heads of Administration on the use of languages in EPSO competitions in Annex II, to which the Commission refers, the limitation at issue is required by the nature of the assessment centre tests, as ‘to ensure that candidates can be assessed fairly and can communicate directly with assessors and the other candidates taking part in an exercise, applying this method requires, in particular, that the assessment centre be conducted in a lingua franca or, in certain circumstances, in the one main language of the competition’.

74

This reason cannot be accepted, however, as the fact that the justification is formulated in general terms means that it could be applicable to any competition procedure, regardless of the special nature of the posts to be filled following the selection procedure at issue.

75

Moreover, according to Annex II, the purpose of the selection procedure introduced from 2010, and in particular the assessment centre tests, is to predict better whether candidates are capable of performing their duties. It follows that this argument concerning the nature of the selection procedure is closely connected with the reason linked to the need for new recruits to be immediately operational. Consequently, if this latter reason were unfounded, the argument concerning the nature of the selection procedure cannot, in itself, justify the limitation of the number of languages that can be chosen as the second language for the competition (see, to that effect, judgment of 9 June 2021, Calhau Correia de Paiva v Commission, T‑202/17, under appeal, EU:T:2021:323, paragraph 98, (not published)).

76

In these circumstances, it must be examined whether, in view of the special nature of the posts to be filled, mentioned in paragraphs 7 and 8 above, the need for officials to be immediately operational constitutes a legitimate justification for the limitation at issue.

(2)

Justification relating to the need for officials to be immediately operational

According to case-law, it is recognised that the service does have an interest in individuals recruited by the EU institutions following a selection procedure like the selection procedure at issue being able to be immediately operational and thus capable of quickly taking up the duties which the institutions intend to confer on them (see judgment of 8 September 2021, Spain v Commission, T‑554/19, not published, EU:T:2021:554, paragraph 65 and the case-law cited).

In this regard, even assuming that it is always necessary to allow a period for adapting to new tasks and new work patterns and the time needed for integration into a new service, it is reasonable for an institution to seek to recruit individuals who, as soon as they take up their duties, are at the very least capable of, on the one hand, communicating with their managers and their colleagues and are thus able to understand as quickly and fully as possible the scope of the duties conferred on them and the substance of the tasks they will be required to perform and, on the other, interacting with staff and external contacts of the services in question. As has been ruled, an official’s knowledge of languages is an essential element of his or her career. Accordingly, it must be considered reasonable for an institution to seek to recruit individuals who are able to use effectively and understand as well as possible the language(s) used in the professional context into which they are to be integrated (see judgment of 8 September 2021, Spain v Commission, T‑554/19, not published, EU:T:2021:554, paragraph 66 and the case-law cited).

However, it is incumbent on the EU judicature to carry out an actual assessment of the rules establishing the language regime of competitions such as that at issue in the contested competition notice, as only an assessment is capable of establishing knowledge of languages which may objectively be required, in the interests of the service, by the institutions for specific duties and, consequently, whether any restriction on the choice of the languages which may be used in order to participate in those competitions is objectively justified and proportionate to the actual needs of the service (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 94).

More specifically, the EU judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of supporting the conclusions drawn from it (see judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 104 and the case-law cited).

In the present case, it must be held at the outset that the description of the nature of the duties which is contained in the competition notice and in Annex I to that notice is not sufficient, in itself, to establish how only the two languages to which the choice of the second language in the competition at issue is limited would enable the successful candidates in the competition to be immediately operational. There is nothing in the competition notice which shows that those two languages are actually used to carry out the tasks listed in the competition notice and Annex I thereto.

On the contrary, it need only be noted that Annex I to the competition notice, which sets out the typical duties to be performed, refers to multiple tasks, including ‘monitoring tax policy in the Member States, … Member States’ tax legislation and implementation of EU rules’, ‘assessing national direct taxes from a state aid perspective’, ‘monitoring national VAT legislation of Member States’ and ‘assessing national indirect taxes from a state aid perspective’. These multiple tasks indicate rather that, although having a command of a particular language may be essential, recruiting officials with various linguistic profiles would benefit the functioning of the service because they would be able to examine the tax legislation and policy of the Member States in the official language(s) of those States.

Notwithstanding this finding, it must be ascertained whether the three documents provided by the Commission during the proceedings as annexes to the defence are capable of establishing the knowledge of languages which may objectively be required, in view of the special nature of the posts to be filled, by the Commission, for the recruitment of a ‘policy officer’ in a unit in the indirect or direct tax directorate of the DG for Taxation and Customs Union and in one of the fiscal state aid units of the DG for Competition who are immediately operational.

In this regard, taken as a whole, the documents produced by the Commission may be considered to show that English and French are probably the two most widely known languages within the directorates-general in which the successful candidates in the competition are likely to be recruited.

However, this finding is not sufficient, in itself, to establish the knowledge of languages that could objectively be required in the light of the specific duties which the recruited officials will be required to perform. It must be ascertained whether, in view of the special nature of the posts to be filled, knowledge of just one of those two languages, as a second language, actually enables a newly recruited official to be ‘immediately operational’ and, if necessary, it must be verified whether the requirement to sit all the assessment centre tests in the second language was appropriate for meeting that need.

With regard to the special nature of the posts to be filled, a detailed analysis of the documents produced by the Commission shows that in the day-to-day performance of the duties which the successful candidates in the competition will be required to perform, satisfactory knowledge of just one of those two languages, namely English, can be regarded as essential for a successful candidate to be ‘immediately operational’.

The job description in the 34 vacancy notices published in the directorates-general concerned between 1 January 2016 and 9 January 2020, which are included in Annex B.3 to the defence, shows that, although knowledge of English is essential, no such requirement along similar lines applies to French, contrary to the assertion made by the Commission.

It may be noted that the job description for several vacancy notices states that ‘the unit’s working languages are (mainly) English and (to a lesser extent) French’. Similarly, one vacancy notice stipulates that ‘knowledge of English is necessary’ and that ‘basic knowledge of French’ is merely ‘desirable’. Furthermore, it is evident from several other vacancy notices that, while the team’s working language is English, satisfactory knowledge of other languages such as German, Spanish, Italian, Polish or other official languages would be an asset.

Thus, although it cannot be ruled out that, given the widespread knowledge of French within the directorates-general concerned, a successful candidate having only a satisfactory knowledge of French could eventually be operational, such a successful candidate could not, in view of the special nature of the posts to be filled, be considered to be ‘immediately operational’ as required by the competition notice.

When asked about this at the hearing, the Commission was unable to identify a position to which a successful candidate with only adequate knowledge of French, as a second language, could have been appointed and considered ‘immediately operational’.

In any event, the competition notice states that the limitation at issue is essential because ‘most Commission departments in Customs and Taxation have recourse to English or French for analytical work, internal communication as well as communication with external stakeholders, publications and reports, legislation, or economic papers, as mentioned under “What tasks can I expect to perform?” and in Annex I’. On that basis, the competition notice concludes that a successful candidate not having a satisfactory knowledge of English or French would not be immediately operational.

It follows that the objective of recruiting officials who are ‘immediately operational’ is geared primarily to field-related competencies rather than to general competencies.

It must be stated, however, that the four assessment centre tests had to be conducted in the second language, even though it does not seem strictly necessary, in order to attain the objective of recruiting officials who are ‘immediately operational’, for the three tests, which are designed only to assess general competencies, also to be conducted in the second language.

In the light of the foregoing, the first plea in law, raising an objection of illegality against the competition notice in so far as it lays down the limitation at issue, is well founded. Consequently, the contested decision must be annulled, without there being any need to examine the other pleas in law.

Costs

Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

hereby:

1.Annuls the decision of 10 December 2019 by which the selection board for competition EPSO/AD/363/18 refused, after review, to include the name of MZ on the reserve list for the recruitment of administrators at grade AD 7 in the field of taxation;

2.Orders the European Commission to pay the costs.

Svenningsen

Barents

Mac Eochaidh

Pynnä

Laitenberger

Delivered in open court in Luxembourg on 6 July 2022.

[Signatures]

*1 Language of the case: Italian.