The Flemish decree on the use of languages finally amended
European case law
The Flemish Language Decree of 19 July 1973 imposes that any employer with a place of business in Belgium’s Dutch-speaking region must use the Dutch language for all employee relations, company acts and documents required by law. Documents or acts that are contrary to the Decree’s provisions are null and void. The court declares, of its own motion, their nullity. Such outcome cannot adversely affect the worker and is without prejudice to third party rights. Employers are liable for any damage caused by their void documents or acts to the worker or third parties.
In its 16 April 2013 judgment, the European Court of Justice (CJEU) considered that the requirement to draw up cross-border employment contracts exclusively in Dutch was disproportionate and violated the freedom of movement of workers principle (see newsflash: “Which is the suitable language for my employment contract? New developments”).
As a result, the 19 July 1973 Flemish Decree on the use of languages was modified by the Decree of 14 March 2014 (1).
Amendment of the Flemish decree on the use of languages
The Decree of 14 March 2014 still imposes the obligation to use the Dutch language in all employee relations, company acts and documents required by law but, under certain conditions, allows the use of another language known by all parties for employment contracts. Only the following alternative languages can be used:
- an official language of a European Union Member State or;
- an official language of a European Economic Area Member State which is not an EU Member State (Iceland, Lichtenstein, Norway).
The parties can only draw up a second, legally binding, version of the employment contract if in one of the following three cross-border situations:
- the employee has a residence in another EU or EEA Member State territory;
- the employee has a residence in Belgium but falls under the right of free movement of workers or freedom of establishment as laid down in European law;
- the employee is subject to the freedom of movement of workers principle on the basis of an international or supranational treaty.
If there is a difference between the Dutch and the second official version of the individual employment contract, the Dutch version will prevail.
The new Decree only applies to employment contracts. No other documents or communications between employer and employee are concerned. It is remarkable that the Decree does not allow the use of another language if the employer (or legal representative thereof) is not familiar with Dutch. In the above CJEU case, it was precisely the employer who questioned the employment contract’s nullity on the grounds that its director, a Singapore national with no knowledge of Dutch, had signed the employment contract on the employer’s behalf. The CJEU was of the opinion that, in a cross-border employment relationship, parties should be able to draft their contracts in a language they understand even though it may differ from the Member State’s official language. Therefore, it can be questioned whether the amended Flemish language requirements fully comply with the European freedom of workers (or services) regulation.
The amendments entered into force on 2 May 2014.
The Decree of 14 March 2014 provides the possibility to add a second official employment contract version, drawn up in (e.g.) English in a cross-border employment situation. A Dutch version remains mandatory and will still prevail if the employment contract’s two versions differ.
Whether the amended Flemish language requirements fully comply with European principles on the freedom of movement of workers (or services) is uncertain. It cannot be excluded that other similar cases before the CJEU will follow, again challenging the Flemish Language Decree’s validity.
(1) M.B./B.S. 22 April 2014