Looking For The Babel-Fish? Linguistic Communication Discrimination In Addition To Eu Law

Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano 

Introduction: Language differentiation inwards the EU

There is no ask to practise linguistic communication differentiation inwards Brussels equally at that spot was inwards the ancient Babel. There are already 24 official languages, according to Regulation n. 1/1958, in addition to the European Union Charter of Fundamental Rights protects the rights of European Union citizens to address the European Union Institutions inwards their ain languages. The working languages generally used within the Institutions are three: English, French in addition to German; however, from a legal standpoint, all the documents concerning the Institutions ask to endure translated inwards all the official languages of the EU.

This was silent manageable until the dandy enlargement of 2004, but after that it has cash inwards one's chips increasingly hard for the Institutions to communicate inwards the plethora of dissimilar languages. This creates quite a complex linguistic authorities which could audio strange to a individual who is non confident amongst European Union issues (surely non equally much equally the double spot 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" in addition to to advert to the aspiration coming from sure Member states of having within the European Union Institutions the build novel version of this legendary beast.

So it was easily predictable that sooner or later, inwards the franglais-friendly surround (with about company High German stronghold) of the European Union Institutions, 1 of the unlucky countries where these 3 languages are non easily spoken would lead hold attempted to challenge the validity of an deed of the Institutions on the pose down that it was violating linguistic communication discrimination. This was just what occurred when Italy in addition to Espana appealed inwards front end of the General Court, in addition to hence the Court of Justice, several EPSO (the inter-institutional trunk inwards accuse amongst the selection in addition to recruiting of a substantial purpose of the European Union staff) competitions which appear to endure waiving the linguistic authorities established since the creation of the European Community past times the Regulation n. 1/1958 (as successively amended), the Staff Regulations in addition to the Charter of Fundamental Rights.

1. The facts of the cases at stake

The judgments of the Court arise from the appeal, brought past times the Italian Republic, of the sentence of the General Court inwards Joined Cases T-166/07 in addition to T-285/07, where the General Court dismissed an activity for annulment against an EPSO contest based just on linguistic discrimination. The General Court held that at that spot was no violation of the regulation of non discrimination on the pose down of linguistic communication (as it is enshrined inwards the diverse European Union legal instruments). In particular, the General Court maintained that the Commission assured an adequate publicity of the contest (while non translating the text inwards all official languages) in addition to that at that spot was no proof of the fact that the limitation of the selection of the instant linguistic communication to English, French in addition to High German was discriminatory.

The instance was appealed inwards C 566/10-P on the pose down that the conclusion of the General Court was incorrect inwards law, equally it was failing to consider that the duty non to discriminate on the pose down of linguistic communication was extended too to the hiring physical care for of the European Union Institutions. The Italy won the appeal inwards the case, in addition to that made easier for the General Court to dominion on subsequent appeals of EPSO competitions brought past times Italy in addition to Espana inwards Joined Cases T-124/13 in addition to T-191/13 (released inwards September 2015) in addition to T-275/13 (released on 17 December 2015). However, (as it is testified past times the reasoning of the Court inwards paragraphs lxx ss. inwards instance T-166/07) the instance police of the Court of Justice was quite vague, upwardly to 2012, equally regards the application of the regulation of non-discrimination on the pose down of linguistic communication to the European Union Institutions in addition to to the specific instance of EPSO competitions.

It was to a sure extent obvious that each Institution, inwards this instance the European Commission, was gratis to impose about linguistic communication requirements inwards guild to assure that the members of the staff hired were able to lead hold upwardly at nowadays the duties connected amongst their civil retainer status. However, since the entrance into forcefulness of the Amsterdam Treaty, which provided the legal pose down (now Article eighteen of the TFEU), inter alia, for the twinned directives 2000/43/EC (concerning race discrimination) in addition to 2000/78/EC (concerning discrimination on iv other grounds), in addition to the entrance into forcefulness of the Charter of Fundamental Rights, the province of affairs concerning the prohibition of discrimination has slightly changed. The fact that the Charter of Fundamental Rights is addressed primarily to the European Union Institutions leaves really piffling discretion to the Court equally to the application of the authorities expressed inwards Regulation 1/1958 in addition to past times the Staff Regulations to the activity of the EPSO (an inter-Institutional body), in addition to the strict rules nearly the burden of proof inwards cases of discrimination imposed on the Commission to justify each derogation from the full general prohibition of discrimination of which Regulation 1/58 is an expression.

2. The equality scrutiny in addition to the strict concept of equality

The argue why these cases are worthy of comment is that they are a really useful instance of the changing mental attitude towards equality scrutiny inwards Court of Justice instance police of the terminal few years. In particular, they are a sign of the deeper implementation at the grade of judicial protection of a strict notion of equality (in which equality is presumed, unless the opposite is proved), which seems to move out apart the to a greater extent than traditional "relational concept" of equality (where, on the contrary, much to a greater extent than attending is devoted to the selection of the appropriate comparator). One would say, zip new. The authorities of anti-discrimination police inwards the European Union after Amsterdam is built inwards this way: the discrimination is presumed, unless the opposite is proved. But the fact that equally a full general tendency inwards anti-discrimination police at that spot is no comparing equally such in addition to that the construction of the equality judgment switches directly to the justification authorities implies that the proof cash inwards one's chips increasingly difficult.

As to the traditional agreement of the notion of equality, the construction of the judgment has ever been clearly divided inwards 2 top dog dissimilar steps: comparing in addition to justification. The comparing implies the selection of the appropriate comparator, and, if the province of affairs of the people subjected to the equality scrutiny is dissimilar from the 1 of the comparator, hence at that spot is no discrimination. In these cases (T-124/13, T-191/13 in addition to T-275/13, but too inwards C-566/10-P) at that spot is no evidence of the fact that the Court of Justice has made the selection of selecting an appropriate comparator. It is only presumed, positively or negatively, that at that spot is no involvement of service justifying a derogatory linguistic authorities for the European Institutions. On the other side, if 1 looks at paragraph 99 of the conclusion inwards joined cases T-166/07 in addition to T-285/07, which was the pose down of the appeal of the showtime instance (C-566/10-P), 1 discovery the opposite approach: a to a greater extent than detailed analysis in addition to an evaluation of the differences (a comparison) betwixt the instance of people speaking multiple languages in addition to people speaking only one.

From this indicate of view, the switching of the residue of the equality scrutiny to the justification measuring way that the outcome of these cases turns upon the strict approach to justification. In this instance it is undeniable that at that spot is a Regulation in addition to a linguistic authorities applicable to the European Union Institutions, which leaves really piffling room for derogations. However, are nosotros actually sure that equality cases should presume discrimination in addition to cash inwards one's chips directly to the justification issue, without indulging inwards a comparison? This approach is certainly extremely useful when it comes to a province of affairs of discrimination inwards which it is hard to unveil the discriminatory behaviour, but inwards term of costs-benefit approach, to job it inwards the inter-Institutional human relationship is similar using a tank to kill a bee.

3. The “interests of service” versus the presumption of discrimination in addition to the justification regime

However, it cannot endure denied that at that spot is a problem, from the viewpoint of the application of anti-discrimination law, inwards the apparent inconsistency betwixt the linguistic communication authorities of the European Union Institutions, written inwards the Treaties, in addition to the conduct of the same Institutions. The European Union Institutions apply inwards the recruitment physical care for a golden rule, which implies (reasonably from the viewpoint of people who lead hold ever worked within the EU) that every unmarried civil retainer should endure able to communicate effectively, other than inwards his or her native language, inwards 1 of the so-called “working languages” (English, High German in addition to French). However, inwards the European Union Treaties equally good equally inwards the diverse pieces of secondary legislation at that spot is no sign of these “working languages”, other than the possibility induce down inwards Regulation 1/58 for the Institutions to approve their ain linguistic authorities (note that the only European Union trunk that has approved a specific linguistic authorities which has passed the Court’s scrutiny is OHIM, the European Union trademark agency).

Not 1 of the Institutions has hence far introduced such a regime, in addition to the outcome is that the linguistic authorities of the European Commission had, inwards the 3 cases examined, been scrutinised for justifications. During the justification scrutiny what should endure proved is that, provided that the aim to endure reached past times the Institutions is legitimate, at that spot is an evident ask for the application of a specific derogatory linguistic regime, relying on several pieces of quantitative in addition to qualitative evidence.

In fact, the presumption of discrimination which lies at the essence of the actual European Union anti-discrimination legislative framework, in addition to which is applied inwards the 3 cases past times the Court, leaves the proof of the absence of the discrimination exclusively on the perpetrator of the discriminatory behaviour. And inwards instance that the proof is non available, too the proof of the objective justification lies on the person, or on the Institution, which is upholding the discriminatory behaviour. From this perspective hither is where the apparent weakness of the declaration of the Commission inwards these judgments lies: the Commission thinks that the beingness of an involvement of service is sufficient to escape the proof of the absence of the discrimination. The Court replies that unless specific in addition to detailed evidences are produced, which demonstrate the contrary, the “interest of service” does non allow per se the Commission to derogate from the linguistic regime. Interestingly, the Commission attempted, inwards exceptional inwards Case T-124/13, to render evidence on the ask for the selection of a sure number of languages within the involvement of the service. The Court first, in addition to the General Court afterwards on, lead hold all the same considered this declaration insufficient, on the pose down that the regulation of non discrimination, of which the linguistic authorities of the Institutions is an application, has a specific structural importance for the survival of the whole European Union machinery.

4. Costs in addition to benefits of the outcome of the judgments at stake

At the destination of the day, what stands out of the crowd inwards these judgments is the fact that the European Union Institutions, in addition to the EPSO, should interpret inwards all the official languages of the European Union the text of the exams of the competitions, in addition to that each unmarried European Union citizen tin flame apply to the contest provided that he or she speaks at to the lowest degree 2 European Union languages, no affair which languages they are. However, it is piece of cake to uncertainty that an applicant who is able to discovery his way through the tricky EPSO contest volition at nowadays endure able to lead hold upwardly the duties connected to his service if he or she only speaks, for instance, Italian in addition to Polish. And what tin flame endure said nearly the linguistic authorities of the recruiting physical care for applied past times other Institutions exterior the EPSO scheme?

For instance, the Court of Justice itself requires a really adept cognition of French for its positions available within the Research in addition to Documentation DG, implying too the effective might to write inwards this language. Can such a requirement resist the linguistic authorities applicable to the European Union Institutions in addition to the equality scrutiny applied past times the really same Court? These are all really interesting questions, but until the Institutions in addition to the Member U.S. effectively regulate the number of the working languages, it is highly probable that nosotros volition run into to a greater extent than in addition to to a greater extent than judgments similar these, having equally a top dog outcome to paralyze the already complex machine of the EPSO, in addition to to homecoming fifty-fifty slower the physical care for of hiring novel staff, delaying 1 time to a greater extent than the crucial generational turnover within the European Union Institutions.

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Babelfish credit: Douglas Adams

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