In a judgement handed down on 16 April 2013, the European Court of Justice stated that the Flemish Decree on Use of Languages infringes the free movement of workers. According to this judgement, Belgium cannot stipulate that, in a cross-border employment situation, the related acts and documents are only valid in the Flemish region when written in Dutch.
1. Background
A Dutch national residing in The Netherlands was employed by a company established in Antwerp. Since the representative of the employer had no knowledge of Dutch, the two parties concluded the agreement in English. The agreement included a clause limiting the notice period. After five years, the employee was dismissed with immediate effect and paid an indemnity in lieu of notice equal to that foreseen in the agreement.
The employee, however, invoked the nullity of the clause, arguing that the agreement was drafted in the incorrect language and could thus not be invoked in accordance with the Flemish language Decree. The company argued that this decree infringes the free movement of workers as foreseen in EU law.
2. Court of Justice decision
The Court considered that the obligation for all employers – whose established place of business is located in Flanders – to draft all cross-border employment contracts exclusively in Dutch, is in breach of EU law.
3. Importance and limitations of this judgement
Scope of the decision
Firstly it is essential to point out that the Flemish Decree on Use of Languages has not been declared void and will remain applicable until it is modified by the Flemish government. Nevertheless, the decision will be binding for the referring judge and in cases which are similar to the present case.
The case dealt with the free movement of workers within the EU, as foreseen by the TFEU (the treaty on the functioning of the European Union). In principle only nationals of the European Union can benefit from the provisions of the TFEU. The scope of the free movement of workers has however also been extended to citizens of the EEA and Switzerland. To illustrate, an employment contract between an American national and a company which is established in Flanders, should still be drafted in Dutch in order to be valid.
Furthermore, we point out that the application of the treaty provisions requires a cross-border element. Therefore only in situations where two countries are involved, for example where the state of residence differs from the state of work, could the case be seen as similar to the present case.
What does the future hold?
Since the decree is declared to be an infringement on the free movement of workers, we can conclude that the English version of an agreement will be considered as valid by Belgian judges. For future agreements, the government already indicated that the decree will be modified.
Based on the considerations of the present case, it seems that Belgium could allow the drafting of a valid version of the employment agreement in a language known by all the parties, alongside the Dutch version. According to the European Court of Justice, this would be lessprejudicial to the freedom of movement of workers. However, this would continue to create an additional administrative burden and entail additional operating costs for the employer, and it seems that it therefore cannot be excluded that such a ‘solution’ could still be seen as an infringement on the free movement of workers.
