Key facts of the case:
- In this case, the Arbeidsrechtbank te Antwerpen (Labour Court, Antwerp (Belgium)) asks the Court to determine whether the provisions of Article 45 TFEU (3) preclude legislation such as the Decree of the Flemish Community of the Kingdom of Belgium adopted on 19 July 1973 on the use of languages in relations between employers and employees and also in company documents and papers that are required by law and by regulation (4) (‘the Flemish Decree on Use of Languages’).
- Under that decree, where an employer’s established place of business is in the Dutch-language region, (5) use of that language is required in respect of all ‘employment relations’ in the broader sense since that concept appears to cover, apart from employment contracts, all individual and collective contacts, whether oral or written, between employers and employees which are directly or indirectly related to employment.
- Similar requirements are laid down mutatis mutandis in the employment law provisions of other entities in the Kingdom of Belgium and of certain EU Member States, but they give rise to different implementing rules.
- The request for a preliminary ruling was referred to the Court in the context of a dispute over payment of various sums following his dismissal between Mr Las, a Netherlands national residing in the Netherlands but whose paid employment was mainly in Belgium, and his former employer, PSA Antwerp NV (‘PSA Antwerp’), a company established in Flanders belonging to an internationally active group.
- In essence, the referring court asks the Court to determine whether the principle of freedom of movement for workers precludes a Member State’s legislation from imposing use of a specific language in respect of the drafting of written employment documents on conditions which are the same as those laid down by the decree in question on the ground that it would constitute an unjustified and/or disproportionate obstacle to that freedom where the employment relations in question take place in a cross-border context.
- The Court has already established the key points of the answer to the question referred in that it ruled in Groener (6) that ‘[t]he EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language. However, the implementation of such a policy must not encroach upon a fundamental freedom such as that of freedom of movement for workers. Therefore, the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States’.
Results (sanctions) and key consequences of the case:
In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Arbeidsrechtbank te Antwerpen as follows:
Article 45 TFEU concerning freedom of movement for workers within the European Union must be interpreted as meaning that it precludes legislation by a Member State such as that at issue in the main proceedings which imposes an obligation on an undertaking situated in a region where there is only one official language when hiring a worker in the context of employment relations with an international character to use that language exclusively for the drafting of all documents relating to the employment relationship, on pain of nullity.