On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.
The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with.
While in recent times the Court has been faced with a number of cases concerning the question in how far the protection of an official language can restrict the four economic freedoms (see for instance in the Luxembourg Notaries case and Runevič-Vardyn and Wardyn), Anton Las somewhat diverges from these judgments given that it concerns an official language that is not common to the entire territory of a Member State but only one of its constituent parts.
From this perspective, it is not so much the outcome of the case that is of interest, but rather the reasoning of the Court. Indeed, after the recent judgment in Kamberaj, this is only the second time that the Court pronounced itself on how EU law approaches official languages that are not common to an entire Member State but only of a part thereof. In addition, the measure in this case is not of a national but of a regional nature as it was adopted by a sub-national authority rather than a Member State.
Advocate General Jääskinnen recognized that:
‘Protection of an official language, whether national or regional, is an objective of general interest which the Court has accepted as a legitimate justification for adopting a policy for the protection and promotion of a language.’
Yet, he concluded that the measure seeking to protect the use of the Dutch language was disproportionate and thus contrary to EU law. The CJEU agreed that the measure was not proportionate as its sanction consisted in the nullity of the contract and given that the parties to a cross border contract might not have knowledge of Dutch (in fact the employer signing the contract was a Singapore national with no knowledge of the Dutch language.)
The CJEU argued that, in general, EU law does not preclude domestic measures that protect or promote one or multiple official languages. It reiterated that the EU is obliged to respect its Member State’s linguistic diversity. In accordance with Runevič-Vardyn and Wardyn, the Court also found that the respect for such linguistic diversity flows from the respect that the EU owes the national identities of its Member States according to the first sentence of Article 4(2) TEU. This reference is interesting. While it could have been feared that this provision would be little less than a rhetorical device in the Treaty that triggers little legal effects, the case under analysis confirms the recent trend that the Court is rather eager to rely on this provision. Indeed, the Court found that:
‘According to the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights of the European Union, the Union must respect its rich cultural and linguistic diversity. In accordance with Article 4(2) TEU, the Union must also respect the national identity of its Member States, which includes protection of the official language or languages of those States.’
As such, the Advocate General and the Court agree that, in principle, the promotion and encouragement of the use by a sub-national authority of an official language of a Member State can constitute a legitimate interest that can justify restrictions to Article 45 TFEU, even if in casu the restriction could not be justified.
Thus, Anton Las is noteworthy for two reasons: (i) because it confirms that domestic laws (be they of a national or regional nature) can impose obligations on private actors aimed at encouraging the use official language, and (ii) because it forms part of a more general trend towards the recognition of sub-national autonomies by EU law. Indeed, there is a deep link between sub-national autonomies and language. This is very obvious when looking at Belgium, but can also be observed in Catalonia, the Basque Country or certain parts of Italy. It is important to note that although the recognition of Dutch as an official language of Belgium is enshrined at national level, the obligation to use this language in employment contracts has its origin in a regional law.
While the European Union was, according to the tradition in international law, at first blind to the existence of its Member State’s constituent parts, this is now changing. Indeed, in the last Treaty revision, references to the sub-national dimension have been included, among others, into Article 4(2) TEU, as well as the principle of subsidiarity that is enshrined in Article 5(3) TEU. In addition, the CJEU has also started to change its position towards sub-national authorities and altered its case law so as to create space for their autonomies, as best illustrated by the Azores case.
While, by looking at the result of Anton Las, it might at first sight appear rather unspectacular, a closer look actually reveals that it is not simply about Article 45 TFEU but also about the question how EU law should approach the ‘regionalism’ in some of its Member States. The importance of this delicate question no doubt explains why the case was assigned to the Grand Chamber and why the latter stressed the right of Member States and their constituent parts to protect their languages. As such, measures of the kind are in no way per se incompatible with EU law, but merely when they are disproportionate in nature.
Consequently, the Grand Chamber’s judgment in Anton Las must be considered to contribute to the still shy but nonetheless important trend in EU law to allocate increased importance to sub-national autonomies and identities.