Amendment Flemish Decree on the use of languages as a result of European case-law

On 16 April 2013, the European Court of Justice ruled that the Flemish Decree regulating the use of languages in relations between employers and employees infringes the freedom of movement for workers. Following this judgement, the 40-year-old Flemish Decree on the use of languages is amended.

The Flemish Decree on the use of languages is applicable to all employers and to all companies (natural and legal persons) having a place of business in the Dutch-speaking region. The language to be used in relations between employers and employees, as well as in company acts and documents required by law is Dutch.

Therefore, all employment documents such as employment contracts, pay slips, holiday certificates must be drafted in Dutch. If not, these documents shall be null and void (this concerns absolute nullity), however without adversely affecting the worker.

As explained in our Infoflash of 26 April 2013, the European Court of Justice acknowledged that the Flemish Decree on the use of languages in certain aspects breaches the freedom of movement for workers within the European Union. Consequently, an amendment of the Decree on the use of language was required.

General principle

As a general rule, it will remain the case that natural and legal persons having a place of business in the Dutch-speaking region, have to use the Dutch language in:

• relations between employers and employees;
• company acts and documents required by law;
• all documents intended for the staff.

Relaxation for the individual employment contracts

For individual employment contracts, the drafting of an authentic version in one of the following languages known to all the parties concerned in addition to the Dutch version would be permitted:

• an official language of the European Union;
• an official language of one of the member states of the European Economic Area but not a European Union member state (Iceland, Lichtenstein, Norway).

This option to draft an additional authentic version of the individual employment contract is only applicable if the employee is in one of the following cases:

• the employee is a resident of the territory of one of the other European member states or of one of the member states of the European Economic Area;
• the employee is a resident of the Belgian territory AND has exercised his right to freedom of movement for workers or freedom of establishment (as guaranteed by art. 45 and 49 of the Treaty on the Functioning of the EU and by Regulation no. 492/2011)
• the employee is subject to the principle of freedom of movement of workers on the basis of an international or supranational Treaty.

If there is a difference between the Dutch version and the version in other languages of the individual employment contract, the Dutch version of the document shall prevail.

Amendments of the criminal sanctions

The criminal sanction in the event of a breach of the Decree on the use of languages is amended. The non-compliance of the Decree on the use of languages by the employer (his agents or mandataries) results in the imposing of a criminal fine amounting from 50 to 500 Euro.

The period of limitation for the criminal sanction for breaches of the Decree on the use of languages is established at 5 years (instead of 1 year).

The amendments will become effective on 02 May 2014.

Source: Decree of 14 March 2014 amending articles 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 (1), Moniteur Belge. 22 April 2014 

Author: Peggy Criel

20/08/2015