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

In 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.