Use of languages in cross-border employment : Cosmopolitan Flanders?
Foreign companies often are puzzled about the language to use when drafting an employment contract for an employee either sent (seconded) from abroad to work in Belgium or for one hired locally by a Belgian company. Most foreign companies agree contractual (employment) terms in English as they do not know one of the languages used in Belgium.
The Belgian legislation on the use of languages between the employer and employee is rather complex and differs depending on the region where the place of business to which the employee is linked is situated (Brussels, Wallonia, Flanders, …). Non-compliance with the language rules means, in Flanders, that the employment contract is void, but without prejudice to the employee's right or to the rights of third parties. "Void" means that the parties cannot invoke the provisions stipulated in the agreement.
In its judgement of 16 April 2013 in Case C‑202/11 Anton Las v. PSA Antwerp NV, the European Court of Justice had to rule on whether the Flemish language legislation - by virtue of which the only authentic (valid) contract is that written in Dutch - is contrary to the freedom of movement for workers in cross-border situations.
The Court decided that the Flemish language legislation has a dissuasive effect on non-Dutch speaking employees and employers from other Member States, constituting a restriction on the freedom of movement for workers.
The European Court of Justice indeed holds that – in a cross border situation – legislation such as the Flemish Decree on the Use of Languages goes beyond what is strictly necessary to attain the objectives (i.e. promoting the language, ensuring the protection of the employees or ensuring the efficacy of an audit) and cannot therefore be regarded as proportionate.
Advice taken from the ECJ
Even though this judgement concerns the Flemish Decree on the Use of Languages of 19 July 1973, its effects can be extended to the similar Decree of 30 June 1982, which applies to the French-speaking region of Belgium. However, the Decree of 30 June 1982 does specify that, even if only the contract drafted in French is valid, other languages are allowed.
Its application cannot, in our view, be directly extended to the Royal Decree of 18 July 1966 on the use of languages in administrative matters, which applies to employers with an established place of business in the Brussels area, as this Royal Decree does not provide for a nullity sanction (it allows a document in another language to be replaced).
Although the Court only addresses the issue of the employment contract, in our opinion, its scope cannot be limited to employment agreements. We believe it must be extended to all employer/employee relations within the scope of the respective Decrees.
It should be noted that this ruling is based on the freedom of movement for workers. This means that, for its application, it is required that the employment relation in question falls within the scope of this freedom. In a purely internal Belgian context (e.g. employees employed in the Flemish Region by a Belgian entity but receiving a specific bonus plan in English through the US parent), the language regulations remain unaffected.
Please note that if the employee working in Belgium is not linked to any place of business of the foreign company in Belgium (i.e. secondment), the language legislation will not apply in any case. As a consequence, the contract may be drafted in another language than that imposed by federated legislation.
Please do not hesitate to contact us should you require further information on this topic.