The Flemish decree on the use of languages requires that, once an employer's place of business is located in Flanders, the language used in relations between this employer and its workers must exclusively be Dutch.
Based on this provision, if your place of business is located in Flanders, your employment contracts may only be drawn up in Dutch, under penalty of being absolutely null and void.
The CJEU decision of 16 April 2013
The facts that gave rise to the CJEU decision may be summarised as follows.
Mr Las, a Dutch citizen, was employed by PSA Antwerp, a company located in Antwerp, but belonging to an international group with its registered office located in Singapore.
Mr Las's employment contract was drawn up in English and contained a clause setting the compensation due to in the event of dismissal.
Following his dismissal, Mr Las asserted before the Antwerp Labour Court that the said clause was null and void as it had not been drawn up in Dutch. He therefore claimed a severance payment higher than provided in his employment contract.
The Antwerp Labour Court asked the CJEU about the compatibility of the Flemish decree with the principle of the freedom of movement for workers, in the context of a cross-border employment contract.
In order to justify the abovementioned decree, the Belgian government put forward three objectives:
- the protection of workers;
- the effectiveness of administrative and judicial controls; and
- the defence and promotion of Dutch.
Initially, the CJEU found that these three objectives constituted pressing reasons likely to justify a restriction of the principle of free movement of workers.
However, the CJEU then considered that the Flemish decree went beyond what was strictly necessary to attain these three objectives. In other words, the decree was not in proportion to the objectives pursued.
Indeed, the CJEU found that in the event of violation of the obligation to draw up the employment contract in Dutch, the penalty was nullity of the employment contract, which must be declared by the judge as a matter of course.
Now, the CJEU pointed out, that the parties to a cross-border employment contract do not necessarily have knowledge of Dutch. In such a situation, establishing free and informed consent between the parties requires that they can draft their contract in a language other than Dutch.
Furthermore, the CJEU pointed out that the Flemish decree would violate workers' freedom of movement less if, while requiring Dutch for cross-border contracts, it also allowed an authentic version to be established in a language known by all the parties.
The CJEU therefore concluded that in the specific context of a cross-border contract, the Flemish decree is disproportionate compared with the objectives referred to by the Belgian government, and thus violates the principle of the freedom of movement for workers.
Towards a simplification for employers?
Based on the CJEU decision, it is clear that the Flemish decree must be reviewed. Given that the French-speaking Community decree on the use of languages is similar to the Flemish decree, the Parliament of the French-speaking Community should do the same for the French-speaking region. The bilingual region of Brussels-Capital, on the other hand, should not be concerned. Indeed, in this region, violation of the law on the use of languages is not penalised by nullity.
However, at this stage, it cannot be concluded that the legislators concerned will amend their decrees in the direction of a simplification for employers.
The CJEU repeated on many occasions that its decision only applies to the specific case of cross-border employment contracts. Based on the decision discussed, it cannot be concluded either that the response of the CJEU would be identical in the case of a purely national situation (e.g., a French-speaking worker who works for a company based in Flanders). The legislators could therefore confine themselves to amending their decrees only for cross-border employment contracts.
In the same way, the legislators might opt for the solution put forward by the CJEU, consisting of maintaining the obligation to draw up employment contracts in Dutch, while allowing an official version to be prepared as well in another language known by all the parties. If the legislators opt for this solution, the parties will still have to draft their employment contracts in Dutch. They could then only add a second official version, drawn up, for example, in English. This will obviously not reduce translation costs.
What should be done while waiting for the legislation amendments?
At present it is not known how the provisions in question will be adapted and how the labour courts and tribunals will react to the decision by the CJEU.
Consequently, while waiting on an initiative by the legislators, we advise you to continue to apply strictly the regulations relating to the use of languages when drafting your employment contracts or any other HR-document intended for your workers.
