Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.2.2.2:3.2.2.2 Grounds of justification

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/3.2.2.2

3.2.2.2 Grounds of justification

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47. It goes without saying that the fact that Article 45 TFEU prohibits the Bank to adopt the particular requirement may significantly limit the Bank’s private autonomy.1 The prohibition is, however, not absolute. The Court of Justice clarifies that like Member States private parties can try to invoke a ground of justification in cases in which their conduct impedes the free movement of workers. In relation to indirect discrimination the possible grounds of justification are broader than those for direct discrimination.2 In the case of Angonese, which constitutes a form a indirect discrimination, the Court states:

“A requirement such as the one at issue in the main proceedings, making the right to take part in a recruitment competition conditional upon possession of a language diploma that may be obtained in only one province of a Member State and not allowing any other equivalent evidence could be justified only if it were based on objective factors unrelated to the nationality of the persons concerned and if it were in proportion to the aim legitimately pursued.” [Emphasis added: I.A.]3

Subsequently, the Court assesses the situation at hand and concludes:

“So, even though requiring an applicant for a post to have a certain level of linguistic knowledge may be legitimate and possession of a diploma such as the Certificate may constitute a criterion for assessing that knowledge, the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualifications obtained in other Member States, must be considered disproportionate in relation to the aim in view.” [Emphasis added: I.A.]4

Thus, the requirement imposed by the Bank is precluded by Article 45 TFEU and consequently, the Bank has infringed this provision.5 It is up to the Italian court(s) to determine the concrete legal consequences of this infringement by the Bank in relation to Angonese.

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