Discrimination in the EU?

Dear Mr C.,

On 5 April 2002, you made a complaint to the European Ombudsman on behalf of the Universala Esperanto-Asocio (World Esperanto Association). The complaint concerned possible cases of linguistic discrimination.

On 22 May 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 7 October 2002, which I forwarded to you with an invitation to make observations by the end of November 2002. On 26 November 2002, you asked for an extension of the deadline to submit your observations. Your request was accepted by letter of 2 December 2002 and the deadline was postponed the end of December 2002. Your observations, sent on 26 December 2002 by e-mail, have been registered on 6 January 2003.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant complained on behalf of the Universala Esperanto-Asocio (hereinafter UEA), concerning the alleged linguistic discrimination by several European organisations, financed partially or wholly by the European Commission, which in their advertising of vacancies require "English mother tongue" or "English native speakers". As a consequence, thousands of people appear to be discriminated against; although they have a good knowledge of English, they cannot be recruited.

In his complaint to the Ombudsman, the complainant claimed that the Commission should:

1) recognise the discriminatory nature of recruitment announcements for posts officially open to all citizens but which are unofficially reserved for native English speakers;

2) ensure that it will no longer finance the companies or organisations that exercise discrimination against European citizens that are not of English mother tongue;

3) study the means and solutions to prevent linguistic discrimination exercised by organisations that it partially or fully finances.

THE INQUIRY

In its opinion on the complaint, the Commission made in summary the following points:

As regards the complainant's first claim, all recruitment announcements for posts which are officially or unofficially reserved for "native speakers" are not acceptable under Community rules on free movement of workers and discriminatory. The question whether a post has been unofficially reserved for a "native speaker" has to be evaluated by the competent court in each individual case.

However, a requirement for a "perfect knowledge" cannot be seen, in principle, as contrary to Community law(1). In such a case, the employer has to justify the need of a very high knowledge of a specific language for the job in question.

The Commission's services had given this information in several occasions directly to UEA via their representatives (by letters of 14 May 2001, 20 July 2001, 5 October 2001, 24 January 2002 and during a meeting held on 11 March 2002). Furthermore, in a meeting of 24 May 2002, the Commission had informed the members of the Advisory Committee on Free Movement of Workers about the need to avoid all discrimination when drafting job advertisements. It had urged them to inform all the parties possibly involved, both in the private and in the public sector.

As regards the complainant's second claim, the Commission stated that the rules and principles governing the award of grants, contained in the Commission vade-mecum on grant management, are enshrined in the new Financial regulation(2), to enter into force on 1 January 2003. Article 109 reads that "the award of grants shall be subject to the principles of transparency and equal treatment. (...)". Concerning the financing of an executive agency, foreseen by Article 55 of the new Financial Regulation, the Commission stressed that the staff of these agencies will be agents subjected to the Staff Regulations. The rules applicable to them include the general principle of non-discrimination.

As regards the complainant's third claim, the fight against any kind of discrimination is a priority in its policies. As regards the possible discrimination caused by a requirement to be "native speakers" in a specific language in job advertisements published by employers from the private sector or from non-governmental associations, it cannot intervene in these cases and that they have to be evaluated individually by national courts.

Furthermore, the Commission informed the Ombudsman that, on the basis of the information sent by UEA in July 2002, concerning a list of job advertisements linked to the Belgian State which appeared to be discriminatory, it registered this information as a formal complaint and the Belgian authorities would be contacted in this respect.

Again, the Commission pointed out that whenever its services had been informed about possible discriminatory job advertisements by organisations partially or fully financed by the institution, it had intervened asking them to take the necessary steps to correct them. Directorate Generals had sent letters to the organisations closely connected with the institution in which they had strongly recommended them to ensure that: (i) language qualifications for any post are consistent with the actual level of knowledge required to perform the job in question; (ii) where a complete command of any language is an essential requirement for a particular post, descriptions such as "a complete command of" or "a thorough knowledge" are used in preference to "native speaker" or "mother tongue"; (iii) they apply a policy of equal opportunities in recruitment with no undue bias in favour of any linguistic or national group. Furthermore, the Commission recalled that its Directorate General for Employment & Social Affairs would insert in all its calls for tender and call for projects a clause drawing the potential contractors' attention to the illegality of "native-speaker" clauses. Again, the institution drew the attention to the fact that Eurostat was considering including in its standard tender specifications, a clause to the effect that "tenderers are reminded that Community rules on freedom of movement of workers prohibit discrimination based on nationality and that it is discriminatory to require a mother tongue knowledge of a specific language as a condition for access to a job".

In his observations, the complainant considered the Commission's opinion to be unsatisfactory and maintained his original claims.

THE DECISION

1.1 The complaint is based on the alleged linguistic discrimination by several European organisations, financed partially or wholly by the European Commission, which in their advertising of vacancies require "English mother tongue" or "English native speakers". The complainant claimed that the Commission should: (i) recognise the discriminatory nature of recruitment announcements for posts officially open to all citizens but which are unofficially reserved for native English speakers; (ii) ensure that it will no longer finance the companies or organisations that exercise discrimination against European citizens that are not of English mother tongue; (iii) study the means and solutions to prevent linguistic discrimination exercised by organisations that it partially or fully finances.

1.2 In its opinion, the Commission pointed out that all recruitment announcements for posts which are officially or unofficially reserved for "native speakers" are not acceptable under Community rules on free movement of workers and discriminatory. Nevertheless, a requirement for a "perfect knowledge" cannot be seen, in principle, as contrary to Community law, and the employer has to justify the need of a very high knowledge of a specific language to be necessary for the job in question.

As concerns the rules and principles governing the award of grants, the Commission stated that they are contained in the Commission vade-mecum on grant management, and enshrined in the new Financial regulation(3), to enter into force on 1 January 2003. Article 109 reads that "the award of grants shall be subject to the principles of transparency and equal treatment. (...)". Concerning the financing of an executive agency, foreseen by Article 55 of the new Financial Regulation, the Commission stressed that the staff of these agencies will be agents submitted to the Staff Regulations. The rules applicable to them include the general principle of non-discrimination.

As regards the third claim put forward by the complainant, the Commission gave a detailed explanation of the measures it has taken on this issue. A copy of the relevant documents showing the actions taken by the Commission had been enclosed to the institution's opinion.

1.3 The Ombudsman considers that the Commission has addressed the claims put forward by the complainant and that the reply provided by the institution appears to be adequate. The Ombudsman welcomes the fact that the Commission has taken actions to avoid that discriminatory job announcements on the ground of the language are published in the future. He would further like to encourage the institution to continue and enhance its struggle against any discrimination on the grounds of language and obstacles against the principle of free movement of workers.

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

Jacob SÖDERMAN

(1) The Commission gave its opinion on this topic already in its replies to several written questions, i.e in its answer of 21 February 2002 to written question E-4100/00: "The Community rules on freedom of movement for workers prohibit not only overt discrimination based on nationality but also covert discrimination which, by applying seemingly neutral criteria, in fact produces the same result. Nevertheless, there is no discrimination in the case of conditions relating to linguistic knowledge required by reason of the nature of the post to be filled (...)". The Commission's answer has been published in the OJ C 174 E of 19 June 2001, p. 233.

(2) Council Regulation (EC/Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248 of 16 September 2002.

(3) Council Regulation (EC/Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248 of 16 September 2002.