The High Court of Justice of the Basque Country (TSJPV) has annulled the clause of a public procurement of the school transport service that required that workers offering this service should communicate in Basque with the Basque Government. The Contentious-Administrative Chamber warns in a judgment that "it is not possible, therefore, and in principle, to extend that requirement of access to the public service, referring it indirectly to all the personnel at the service of future contractors and contractors of works and services, and directly to these" compared to the criteria established by the Government of Urkullu since April 13, 2021.
Almost two years ago, the Basque Government approved the "criteria for the use of official languages" imposed on public contracts such as the school transport service in the Basque Country. The contract specifications for the transport of students in Bizkaia for the years 2021, 2022 and 2023 included a clause on the linguistic obligations of the companies that opted for this award valued at more than 18 million euros.
One of the companies that opted for the tender sued, first before the internal body of the Basque administration, and then before the courts several of the clauses of the specifications and, among them, the one that establishes that the subcontractor has to guarantee the use of Basque as a language of communication with the officials in charge of this area.
The company that appealed this imposition of Basque warned in its judicial appeal that "the contracting authority [the Basque Government] would be demanding, unconditionally, the successful bidder to make use of Basque to the detriment of Spanish when it decides. It emphasizes that the use of this language would not be a requirement imposed exclusively on the contractor, but also on its staff." In addition, he found that "the public entity is the one that would be obliged to make available to the contractor workers with the capacity to speak Basque, if he demanded it, but not the other way around."
Faced with these arguments, the Basque Government argued that the approved linguistic conditions are "proportionate measures to make effective the use of Basque in the contractual field and in verbal communication" and that its inclusion in the specifications of this contract had a favorable report from the public procurement advisory board.
The Basque judges support that the use of Basque implies the provision of the necessary means, and among them, the presence of Basque-speaking personnel, both in the Administration of the Autonomous Community of the Basque Country and in the peripheral of the State. But they rule that "it is not possible to extend this requirement of access to the public service, referring indirectly to all the personnel at the service of future contractors and contractors of works and services." The ruling of the TSJPV consolidates the judgments issued in Euskadi that annul personnel recruitment processes and now also public awards in which Basque is imposed beyond Basque regulations and violating constitutional principles such as equality and the right to access the public administration as an employee. The Basque Government is studying the presentation of an appeal before the Supreme Court that has already decided not to admit an appeal by the City Council of Irun after another ruling against the imposition of Basque in the hiring of 12 local police officers.
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