Brussels, 16/04/2013 (Agence Europe) - The EU Court of Justice deems the decree of the Flemish community on the use of languages runs counter to the freedom of movement of workers. The decree states that non-compliance with the linguistic obligation results in the nullity of the employment contract which must be established in Flemish between a worker and an employer in the Flemish region. In a ruling on Tuesday 16 April (Case C-202/11), the Court considers that, in the context of a cross-border contract, the linguistic obligation is disproportionate to the objectives invoked by Belgium.
The Court was responding to a question from the labour court of Antwerp. A Dutch national, who had been dismissed by his employer in the Flemish region, challenged the severance allowance arguing that his work contract drafted in English was null and void, as it did not comply with the Flemish decree. The Belgian court called on the EU Court of Justice to state whether, by imposing the use of Dutch in labour contracts to avoid nullity, the Flemish decree runs counter to the freedom of movement of workers in the case of a worker taken on in the context of a job of a cross-border nature (the person concerned in this case is a resident in the Netherlands but works in Belgium).
The Court answers that, in the case in hand, the contract relates to the freedom of movement of workers as it was signed between a Dutch national residing in the Netherlands and a Belgian company. It considers that the decree violates the principle of freedom of movement in so far as it imposes the compulsory use of Dutch for drafting employment contracts for companies established in Flanders, an obligation that can have a deterrent effect on non Dutch-speaking workers and employers. Furthermore, it considers that the Flemish decree goes beyond what is necessary to attain the objectives of general interest that could justify such a restriction invoked by Belgium (i.e. to defend and promote the national language or languages; to allow workers to read social documents in their own language and to benefit from the protection of their national authorities, and to ensure effective supervision by the national authorities). Indeed, the parties to a contract of a cross-border nature do not necessarily master the Dutch language. In order to allow them to freely consent to the terms set out in the contract, they should therefore have the possibility of drafting an authentic contract in another language or, at least, of establishing a version in a language known by all parties concerned - this not being allowed by the Flemish decree. (FG/transl.jl)