Given that I already blogged twice in recent weeks about multilingualism, why not make it three? Today, in Italy v. Commission, AG Kokott sided with the Italians and told the Commission to redo their homework. Just because a job requires excellent knowledge of one of the three working languages does not mean that EPSO gets to publish the full notice only in those three languages. People have to be able to read in Italian about all the details of a competition that requires them to know a language other than Italian. Lex stupido, sed lex.
But then the AG moved on to Italy’s second claim, which essentially amounts to a head-on attack on the whole concept of working languages:
E – Fourth ground of appeal
73. The fourth ground of appeal concerns the crux of the dispute, the choice of only three languages as possible ‘second languages’ for the competition. Italy takes the view that the reasoning on the basis of which the General Court held that the choice made by the Commission was not discriminatory and inappropriate infringes the prohibition against discrimination on grounds of nationality and the principle of multilingualism.
2. Infringement of the principle of multilingualism
85. Italy also takes the view that restricting the choice of second language infringes the principle of multilingualism. In accordance with that principle, candidates for a post in the institutions can be expected to have at least one other language in addition to the language of their Member State, but it cannot be expected that that language should necessarily be English, French or German.
87. The principle of multilingualism is part of the cultural pluralism (40) and national identities of the Member States. It is therefore based on the fundamental values of the European Union, which existed even at the time when the notices at issue were published. (41)
88. However, the principle of multilingualism does not require the European Union to use all the official languages in every situation, (42) nor does it contain any specific rules on the languages from which potential candidates for posts in the European Union may choose a second language. On this issue, it can operate effectively only in conjunction with the general principle of equal treatment.
89. In accordance with that principle, now also enshrined in Article 20 of the Charter of Fundamental Rights, comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. (43) A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment. (44) In the making of that assessment, account must be taken of the relevant fundamental values of the European Union, such as the principle of multilingualism. If the measure is incompatible with such a fundamental value, it must pursue a particularly important aim in order to be justified.
92. (…) Even if the institutions have not formally established any internal working languages, the ability of their departments to communicate with each other internally is none the less an essential precondition for their operation. The institutions must therefore be able to select new staff according to whether they can fit into and work with existing departments. It is therefore of vital importance that they should have an understanding of the languages that are used as de facto internal working languages in those departments. There is no point in an employee having a perfect knowledge of several official languages if nobody else in the department understands them.
93. That said, unless there are special circumstances that make it necessary to reduce the number of languages to one or only a few, it is in the interests of equal opportunity and multilingualism, where possible, to use all or at least several of the languages of the European Union. (46) How those languages are used in practice can then be decided on a case-by-case basis in the light of the capabilities of the staff concerned. Conversely, the institutions should confine themselves to a single language only in so far as special circumstances make this absolutely necessary – in the context of the deliberations of the Court of Justice, for example, the tradition since 1954 has been for judgments to be drafted internally only in French.
94. Since English, French and German are by far the most common foreign languages in the European Union, (47) the institutions are entitled to assume that knowledge of one of those languages as a foreign language facilitates efficient internal communications. No other language would open up greater potential for internal communication. Considered objectively, therefore, those three languages are sufficiently different from the other official languages to warrant selection as the only permitted second languages. Thus, even from the point of view of the principle of multilingualism, the principle of equal treatment is not infringed.