(CN) – Local laws requiring international companies to use only the local language in employment matters violates the free movement of workers, a European high court adviser said.
After Anton Las – a Dutch citizen – lost his job as chief financial officer of PSA Antwerp, he sued for a bigger severance package and other damages. He said that because both his employment contract and his dismissal letter were drafted in English in violation of the Flemish Decree on Use of Languages, both contracts are void and he is entitled to what Belgian employment law allows.
The Flemish Community is an autonomous region encompassing the northern portion of Belgium and is home to 60 percent of the country’s residents. There is mounting pressure to consider Flanders, as the region is also known, a separate nation from Belgium. The Flemish Community also requires that only Dutch be spoken and used in employment matters.
But PSA Antwerp, while established in Flanders, is headquartered in Singapore and has offices all over the world. In considering Las’s case, the Belgian court asked the EU’s Court of Justice whether the Flemish Community’s language law could be applied to international companies doing business in Flanders.
In his opinion for Europe’s high court, Advocate General Niilo Jääskinen noted that while EU law doesn’t address the use of languages in drafting employment documents, the Flemish law is likely to adversely affect non-Dutch speaking employees.
“The mirror effect of the obstacle thus encountered by employees is that employers from other Member States established in the Dutch language region of Belgium cannot offer employment conditions that are free from the linguistic controls imposed by the decree in question. They are, in practice, induced to recruit only employees who understand Dutch, for whom it will be easier to converse in that language,” Jääskinen wrote.
“Moreover, unlike undertakings based in that region, internationally active employers who establish their place of business there must cope with administrative complications and additional operating costs. In fact, the working, administrative and business language of such undertakings is often a language other than Dutch. They are then forced to replace their normal employment contract forms and all other employment acts or documents relating to personnel management and to ask Dutch-speaking lawyers to help them to this end,” the Advocate General continued.
Such requirements are an obstacle to the basic European freedom of movement for workers, according to Jääskinen, who also rejected the three justifications for the law put forth by the Belgian government.
Jääskinen said the protection of employees lacked merit because only Dutch-speaking employees would be fully protected by the Flemish language law, particularly where signing contracts is involved. And while Belgium’s argument that having a single language helps administrative and judicial procedures is more valid, the extensive nature of the Flemish Decree on Use of Languages is not essential in carrying out such procedures since translation services are readily available.
The Belgian government’s third justification of the protection of an official language is completely valid – for Belgian or Flemish companies.
“Although protection and promotion of an official language are, as such, legitimate objectives, the means used to attain those objectives must be proportionate and must not exceed what is necessary to attain them. However, a national or regional measure seeking to impose exclusive monolingualism to the effect that languages of other member states cannot be used in a given field does not seem to me to be legitimate in the light of the principles of EU law. Protection of a language cannot, therefore, be a valid justification for legislation… in that it does not allow account to be taken either of the will of the parties to the employment relationship or of the fact that the employer forms part of an international group of undertakings,” Jääskinen wrote.
Jääskinen said the Flemish law goes too far and “the project of European integration becomes devoid of meaning if the member states can require… employers and employees to use a specific language to an extent which exceeds the restrictions on contractual freedom that are strictly necessary to fulfill objectives of general interest.”
“In the context of international employment relations, the autonomy of the parties must predominate if cross-border trade is to be facilitated, even if a fair balance must, of course, be struck between freedom of movement for workers and protection of those workers,” the Advocate General wrote.
Jääskinen also took issue with the laws excessive penalties, saying that “no such legislation of which I am aware is as coercive as the Flemish Decree on Use of Languages.”
He continued: “It is settled case-law that restrictions on the fundamental freedoms imposed by the Member States must be confined to what is strictly necessary, which means choosing the course of action, and thus the measure, which is least restrictive. This principle is not observed by the Flemish Decree on Use of Languages, since it appears that, in itself but also in comparison with other provisions, it imposes particularly strict requirements with far reaching effects both on the individuals concerned and on the court hearing a legal action in this regard.”
“I consider that other, better suited, measures which are less restrictive on freedom of movement for workers than those adopted could achieve the objectives that appear to be pursued by that decree,” Jääskinen concluded. Jääskinen’s opinion is not binding on the Court of Justice, but provides the judges with a legal solution to their deliberations. Final judgment will be rendered at a later date.