- Leila Mstoian - Ann Vranken
- employment contract , use of languages , place of business , Dutch-speaking region , employment relationship , freedom of movement
Pursuant to the Flemish Decree on the use of languages of 19 July 1973 (hereinafter the
“Decree”), all enterprises who have their place of business in the Dutch-speaking region of Belgium
are obliged to use Dutch in their relations with their employees, as well as in all the company
acts and documents required by the law.
Acts or documents that are not drafted in Dutch, such as an employment contract, are null and void, by virtue of the Decree.
The regulations of the Decree on the use of languages also apply to foreign undertakings having a place of business in the Dutch-speaking region of Belgium, even if their current language is not Dutch.
1. The Decree is in conflict with European regulations
The European Court of Justice judged in its decision of 16 April 2013 that the Flemish Decree on
the use of languages in cross-border employment relations is in violation with the principles of
freedom of movement of persons.
According to the Court the regulation provided by the Decree on the use of languages constitutes a restriction for the freedom of movement of workers. The Court criticized mainly the obligation to draft cross-border employment contracts in Dutch, without the necessity that both parties have to have knowledge of Dutch. The Court judged that in such cases the employment contracts may be drawn up in other languages than the official language of the member state.
2. Adjustment of the Flemish Decree on the use of Languages as a result of the judgement of the European Court of Justice
The Flemish Legislator has adjusted the Decree on the use languages to the aforementioned
judgement in order to meet the comments of the European Court of Justice.
On 2 May 2014 the Amending Decree of 14 March 2014 entered into force (Decree amending Article 1,2,4,5,12 and 16 of the decree of 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 (Belgian Official Gazette 22 April 2014)).
Although the Flemish Legislator refers to a "modification" of the Decree on languages, essentially very little has "changed" since the entering into force of the Amending Decree. The Dutch language is still the basic language for relations between employers and employees. The same principle applies for company acts and documents required by the law.
The only modification that was made, is on the level of the individual cross-border employment contracts.
From now on, a legally valid version of the individual employment contract can be drawn up in an official language of the European Union or the European Economic Area. This (other) language has to be understood by all contracting parties. Subsequently, the Flemish Legislator provided that in case of conflict between both versions, the Dutch version shall prevail. Moreover, not every employee can take advantage of this regulation.
In case of conflict between both versions, the Dutch version will prevail
This regulation only applies for employees:
- having their domicile in an other member state of the European Union or a member state of the European Economic Area (Iceland, Liechtenstein and Norway);
- who live in Belgium and made use of their right of freedom of movement of workers or the freedom of residence (as guaranteed by Article 45 and 49 of the Treaty on Functioning of the European Union and by regulation (EU) nr. 492/2011) and ;
- who are subject to the free movement of workers by virtue of an international or supranational treaty.
All other documents and acts within employment relations are only be legally valid if they are in Dutch. Notwithstanding this, every employer is free to add a translation to such documents or acts, without having a legal validity, and as long as the original legally valid document is drawn up in Dutch.
Companies that do not respect the Decree on the use of languages, can be sanctioned with an administrative or a criminal fine. In the past imprisonment was also provided by the Decree but abolished now.
The employer bears the responsibility for the damages caused by the documents or actions that are null and void
The documents or actions conflicting with the Decree are null and void. The nullity has to be decided ex officio by the court. This nullity is valid until the filing of the replacing valid documents with the clerck of the labour court. The nullity cannot be to the disadvantage of the employee. The employer bears the responsibility for the damages caused by the documents or actions that are null and void, caused to the employee or third parties.
The language that must to be used for relations between the employers (having their place of
business in the Dutch-speaking region of Belgium) and employees, company documents and papers that
are required by law and by regulations and all documents intended for the personnel, remains Dutch.
An exception is made for the individual cross-border employment contracts, for which an additional legally valid version drawn up in an other language than Dutch is allowed, subject to the conditions mentioned above. This is an option but not an obligation.
Despite the fact that the Flemish Legislator slightly modified the Decree on the use of languages under pressure of the European Court, the result is that the Dutch language still remains fundamental in Flanders and that other languages are and remain “accessory”. The Amended Decree highlights that the Flemish Community encourages the use of the Dutch language in the relations between employers and employees, considering the protection of the employees and the reinforcement of social coherence.