On 16 April 2013, the Court of Justice of the European Union held (C-202/11) that the rule that an employment contract between a company established in Flanders and a Dutch employee working in Flanders must be drafted in Dutch rather than English in order to be valid violates the free movement of workers.
Does this decision put an end to Belgium's strict language requirements in employment relationships? The answer is no.
Belgian statutory language requirements for HR documents
In Belgium, the language used in relations between the employer and its employees must be Dutch, French or German, depending on the employer's place of business. If the employer's place of business is in the Flemish Region, the language used is Dutch. If the place of business is in the Walloon Region, the applicable language is French. Likewise, if the employer's place of business is in the German-speaking Region, German is used. Employers based in the Brussels-Capital Region can draft all employment-related documents in either Dutch or French, depending on whether the employee is Dutch- or French-speaking.
In the Flemish and Walloon Regions, HR documents that do not satisfy the legislation in effect on the use of languages will be deemed null and void, as will any legal acts arising therefrom.
In the Brussels-Capital Region, HR documents drafted in a language other than French or Dutch are not void, but must be replaced by a document drafted in one of these two languages.
The Court of Justice's decision
Facts
A Dutch employee was employed by a Belgian company, based in Flanders and part of a Singaporean multinational. The parties signed an employment contract, drawn up in English.
Upon dismissal, the Dutch employee argued that his employment contract was null and void, as it was not drafted in Dutch. He therefore claimed more severance than provided for by the employment contract.
Decision
In answer to the Belgian court's request for a preliminary ruling on the question of whether the Flemish language decree is in line with the free movement of workers in a cross-border employment relationship, the Court of Justice ruled as follows:
- The Flemish language decree goes beyond what is strictly necessary to respect the objectives of the protection of workers, the effectiveness of administrative and legal controls, and the defence and promotion of the Dutch language.
- Parties entering into an employment contract with cross-border aspects have not necessarily mastered the official language of the country concerned. In this context, the free and informed consent of the parties is only possible if they can draft their agreement in a language other than the official language of the country in question.
- The Flemish decree, which requires employers based in Flanders to enter into cross-border employment contracts in Dutch, violates the free movement of workers.
Consequences of the Court of Justice's decision
It goes without saying that the existing Belgian statutory language requirements for HR documents are very strict and usually generate high translation costs.
Based on the Court of Justice's decision, the Flemish and Walloon linguistic decrees will have to be modified in the future. However, it should be noted that the Court of Justice's decision applies only to language requirements in cross-border employment relationships.
At present, since the Belgian legislation has not yet been changed, it is still highly recommended to draft HR documents in Dutch (Flemish Region) or French (Walloon Region), even for cross-border employment relationships. Of course, an unofficial English translation can always be provided.
Finally, for the sake of clarity, please note that companies in the Brussels-Capital Region are not affected, as HR documents, drawn up in English rather than Dutch or French, can always be replaced, without being considered null and void.
