As discussed in our Newsflash of 12 September 2012, the Flemish Community’s Decree of 19 July 1973 on the use of languages in labour relations (“the Language Decree’”) was challenged before the European Court of Justice (“ECJ”).
The Language Decree obliges all employers with a place of business in the Dutch-speaking region to draw up all documents intended for their staff in Dutch, even if the employee and/or employer do not speak Dutch. Documents compiled in another language are null and void.
On 16 April 2013, the ECJ ruled that the Language Decree infringes the fundamental freedom of movement within the EU.
In the specific case submitted to the ECJ, a Dutch national residing in the Netherlands was employed by a company which is established in Belgium but part of a multinational group based in Singapore. A cross-border employment contract was concluded in English. The employee worked in Belgium and the Netherlands and, as such, exercised his right to free movement within the EU. After being dismissed, the employee stated that his employment contract was deemed null and void since it was not drawn up in Dutch.
In its judgement of 16 April 2013 the ECJ firstly recalls that the free movement of workers may be invoked not only by workers themselves, but also by their employers. Secondly, the ECJ states that the Language Decree might have a dissuasive effect on non-Dutch speaking employees and employers from other EU member states and is therefore contrary to the fundamental right to free movement within the EU.
Finally, although the ECJ accepts the pertinence of the objectives invoked by the Belgian Government to justify the Dutch language requirements, it finds the way in which these requirements are enforced (i.e. nullity of documents involved) disproportionate to the objectives invoked.
What is the practical impact of this judgement?
Although ECJ judgments are not legally binding, they are considered to be important precedents which can be invoked in similar legal proceedings.
This means that the judgment of 16 April 2013 could be invoked to mitigate the Language Decree’s adverse consequences, whenever the free movement of workers within the EU is at risk in a cross border employment situation.
However, in purely Belgian employment situations and if non-EU nationals are involved, the Language Decree’s severe penalties will remain applicable without any restraint.
Some concrete examples:
If a French employee, living in France but working in Flanders, claims that a specific clause in his French drafted employment contract is null, his employer could, in response, refer to the ECJ judgment of 16 April 2013 to defend that the Language Decree does not apply and that the clause drafted in French is legally applicable.
If a German employee, working in Flanders and Germany, states that he does not have to respect the obligations included in a stock option plan implemented by the US parent company and drafted in English, the employer could respond as in the above example and refer to the ECJ judgment of 16 April 2013 to defend that the Language Decree does not apply and that the English clause remains legally applicable;
However, a Belgian or American employee, living and working in Antwerp for 100% of his time, can still successfully invoke the Language Decree to defend that he is not bound by certain stipulations included in a stock option plan implemented by the US parent company and drafted in English.
Way forward?
The Flemish minister of employment has announced that he will consider amending the Language Decree in line with the ECJ judgment.
However, as long as the Language Decree remains unchanged we recommend employers to continue drawing up all documents related to the employment relation in Dutch, accompanied with a translation in another language if required.
