The Flemish Community’s Decree on the use of languages in labour relations (hereafter referred to as the “Flemish Decree”), which was adopted on 19 July 1973, is currently being targeted by the European Court of Justice (ECJ). The Flemish Decree is suspected to infringe the fundamental principle of freedom of movement for workers.
On 29 April 2011, the Labour Court of Antwerp submitted a preliminary ruling request to the ECJ, enquiring whether this decree infringes the freedom of movement for workers within the European Union. It is well known that the Flemish Decree imposes the obligation on any enterprise located in the Dutch-language region to draft all documents relating to an employment relationship in Dutch under pain of nullity. This raises questions in the context of employment relations with an international character.
A Dutch national residing in the Netherlands was employed by a company established in Antwerp belonging to a multinational group with registered office in Singapore. His employment contract was drafted in English and mandated that the worker was to carry out his work principally in Belgium, although some work would also have to be carried out from the Netherlands.
After the termination of his contract, the worker claimed that the contract should be considered as null and void because it infringed the provisions of the Flemish Decree. The Belgian company argued that the Flemish Decree constituted an obstacle to the fundamental freedom of movement for workers and that the document expressed the parties’ intent in a language which each party could understand, namely English (the director of that company being a Singapore national who was unfamiliar with Dutch).
On 12 July 2012, ECJ Advocate General Jääskinen considered “that the Flemish Decree constitutes an unjustified impairment of the freedom of movement for workers provided for in Article 45 TFEU” (§ 66). He continues further by adding that the Flemish Decree does not respect the proportionality criterion concerning the extent of the language requirements and that the penalties provided for in the event of non-compliance go too far in relation to what is necessary.
Advocate General Jääskinen’s legal opinion is not binding and the ECJ’s final judgement remains pending.
Nevertheless, should the ECJ follow his opinion, a major shift in the use of languages would occur in Belgium, even though this would only affect employment situations with an international character. Furthermore, the same reasoning would also apply for the Walloon Decree on the use of languages in labour matters.
