The Contentious-Administrative Court number 3 of Donostia/San Sebastián considers it “discriminatory” to require a B2 Basque profile to be a municipal police officer in the capital of Gipuzkoa and upholds the appeal presented in this regard by an individual. The fundamental argument of this court is that the requirement of this requirement “has violated the fundamental right of the appellant in article 23.2 of the Spanish Constitution”, on the right of access to public employment.
As a consequence of this decision, this court has declared void the call for two municipal police positions, approved by the San Sebastian City Council on December 20, 2022. The Consistory included among the requirements to occupy these positions that of knowing the two co-official languages, in the case of Basque with a B2 profile.
Once an individual submitted an appeal to this call, the San Sebastian City Council explained that this requirement “was justified to guarantee attention to citizens in Basque” in this municipality, with 47% of Basque-speaking citizens, a percentage that clearly increases in some neighborhoods and that among those under 25 years of age it is above 85%.
The court, however, considers that "it is not possible to require knowledge of Basque to access all public positions when there is a mass of citizens who do not know (nor are they required to do so) the co-official language."
In this sense, the court points out that "it is not necessary for all municipal police officers to know Basque to guarantee citizens their right to interact with the administration using that language." In fact, it goes further and proposes a form of organization to the San Sebastian Municipal Guard: “It would be sufficient, in general, for one of the members of each couple to know Basque.”
This court, therefore, does not censure that Basque is required in public employment calls, but rather that it is required in “all” positions, although this specific case refers to a call for only two positions.
As a general rule, Basque administrations must calculate the percentage of positions in which knowledge of Basque will be required, taking into account the sociolinguistic reality of the place in which the public work will be carried out. Thus, a mandatory index must be determined that comes from the sum of the percentage of Basque-speaking citizens and the percentage of passive Basque speakers, although dividing this last percentage by two.
In this way, the mandatory index, that is, the percentage of positions in which knowledge of Basque should be required, in purely Basque-speaking areas would exceed 90%, while in others it would barely exceed 35%. In the case of the capital of San Sebastian, this mandatory index is greater than 50%.
The group Euskara Denontzat (Basque for all) points out that the requirement of knowledge of Basque has been requested above the mandatory index, especially in the local Administration and demands, among other measures, that these percentages be respected.
More controversial is the “discrimination” argument used by this court and also in other rulings in relation to Basque, always referring to article 23.2 of the Spanish Constitution. This article states, in point two, that citizens “have the right to access public functions and positions under equal conditions, with the requirements established by law.”
The groups in the social sphere of the Basque language that have been criticizing these sentences allude to the fact that the public calls for employment demand multiple requirements, related to training, knowledge of languages or even physical preparation, which are not classified as “discriminatory”, something which does occur in the case of Basque, since, like the knowledge of a language, they can be acquired or trained, in the case of physical requirements
These groups also denounce that the “linguistic rights of Basque-speaking citizens are systematically violated.”
Kontseilua, which brings together a good part of the agents in the world of Basque, denounced last summer “a judicial offensive against Basque”, after another ruling was announced in relation to the regulation of the use of Basque in the Administration. In that case, it was the decision of the Constitutional Court to uphold an appeal by Vox regarding the regulation of the use of Basque in Law 2/2016 on Local Institutions of the Basque Country.
As a result of that ruling and other precedents, this platform called for a demonstration in Bilbao in November, attended by tens of thousands of people.
