[lg policy] European Law Blog: Luxemburgerli: Case C-566/10 P or The Hitchhiker=?windows-1252?Q?=92s_?=Guide to the Galaxy is a source of EU law

Fri Dec 21 16:02:31 UTC 2012

Luxemburgerli: Case C-566/10 P or The Hitchhiker’s Guide to the Galaxy
is a source of EU law

luxemburgerli BildIn her opinion in the case C-566/10 P
Commission/Italy Advocate General Kokott made an interesting point
which inspired a new category of posts here at the blog: Luxemburgerli
– that is, the lighter side of EU law. For the unfortunate readers who
are not familiar with the real life Luxemburgerli, please go see here
– or even better, try them if you get the opportunity. We hope to be
able to entertain you from time to time with some snippets from
Luxembourg on the amusing side of EU law.

In Commission/Italy, AG Kokott opened her opinion with the following
intergalactic reference:

    The European institutions do not yet have a Babelfish (3) that
would make language barriers irrelevant, only Systran, a computer
system for the limited translation of texts the use of which has been
called into question in legal proceedings.

Footnote number 3 confirms that it is indeed Douglas Adams who is
being quoted. Apart from probably gaining wide-spread support among EU
lawyers for this literary reference (I would suspect that the average
EU lawyer could be exactly the kind of person who is into Douglas
Adams’ writings, but feel free to comment to confirm or to reject my
view), one may of course wonder – if one has the inclination for such
intellectual journeys – whether you would have to actually give a
reason for quoting literature as an Advocate General. This is a very
common feature of AG opinions (just think of the many memorable quotes
of the late AG Colomer, see e.g. here in footnote 9). But what does it
all mean? The AG’s broad conception of the sources of EU law strays
into the literary? A practical manifestation of ‘law in context’?
Confirmation that EU law is in fact an unfathomable galaxy? A general
principle derived from the constitutional traditions common to the
Member States’ SciFi readers?

Questions over questions. But since life cannot be all fun and highly
theoretical speculation, let me also give you a brief insight into the
substance of the case. The judgment was handed down on November 27
2012 in response to a complaint brought forward by Italy. The European
Personnel Selection Office had published two notices concerning three
competitions in the Official Journal in German, English and French. As
a condition of admissibility, thorough knowledge of one official
language of the EU and sufficient knowledge of a second language which
had to be German, English or French was required. Communication with
EPSO and the admission tests would be held in German, English or
French exclusively. Later, EPSO published amendments to these notices
in the Official Journal in all official languages, referring to the
old notices and setting a new application period which was the same as
the old one.

Italy brought an action for annulment against the publication of the
two notices, arguing that the notices should have been published in
all official languages in the first place and that the choice of the
obligatory second language was discriminatory and not founded on
objective reasons. The General Court did not accept these arguments.
It held that the lack of publication of the notices in all languages
was remedied by the later amendments published in all languages and
referring to the old notices, and found the choice of three languages
as a second language acceptable.

The Court of Justice, however, disagreed. It underlined that the later
publication could not remedy the lack of publication in all official
languages in the first place, because the later notices only contained
summary information (para 72) and discriminated in any way against a
candidate reading the Official Journal in his or her own native
language other than German, English or French (para 74).

On the choice of compulsory second languages, the Court emphasized
that the requirement of knowledge of particular languages could be
justified in the ‘interest of the service’, but had to be ‘objectively
justified’ and the required level of knowledge of language had to be
‘proportionate to the genuine needs of the service’ (para 88). The
General Court’s finding that the choice of languages was ‘acceptable’,
however, was insufficient, as there had to be rules providing ‘clear,
objective and foreseeable criteria’ so that candidates could know
sufficiently in advance what the language requirements were to be able
to prepare adequately for the exams (para 90). Neither had the
relevant organs published internal rules determining the regulation of
languages nor could the Commission show the existence of
communications clarifying the criteria for the determination of a
second language for participation in admission tests. The notices
themselves contained no reasons for the chosen three languages. The
Court concluded that the General Court did not have the necessary
information to fulfil its role of judicial review, and had thus erred
in law when it decided the question nonetheless (para 98).

Summing up, the Court seems to be taking languages seriously in this
case – and that is certainly not a bad idea. Just remember the ongoing
language battle surrounding the EU patent, in which Spain and Italy
oppose the other 25 Member States’ plan to proceed with only three
languages (German, English and French) for the planned patent (see on
latest developments here). Giving preference to some working languages
as in the present case may be a practical necessity for the EU
institutions. However, such practical reasons arguably cannot serve to
justify neglect for the rules on publication; nor can there be a
decision to require competence in certain working languages without
transparent and convincing reasons for the choice of those languages.

http://europeanlawblog.eu/?p=1344

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