European law only partially saves an employer using a different language

At a glance

• Belgium has very specific legislation on the use of languages in employment matters.
• The legislation applicable in both the Dutch and French-speaking parts of Belgium stipulate the employer cannot invoke a document that’s written in a different language.
• In the Brussels region the worker has the right to ask for a translation at the expense of the employer.
• Despite recent judgements by the European Court of Justice, the Belgian legislation on the use of languages in employment matters is still the same, as confirmed by the Belgian Supreme Court in a judgement of 7 September 2023.

Belgium has very specific legislation on the use of languages in employment matters. For staff who are linked to a place of business in the Dutch-speaking part of Belgium, using Dutch is mandatory in all written and verbal communication between the employer and the employee. Similarly, using French is required for all communication with staff members who are linked to a place of business in the French-speaking part of Belgium. For staff linked to a place of business in the Brussels region, using Dutch is required for Dutch-speaking workers and French for French-speaking workers (the legislation assumes all workers in Brussels speak either Dutch or French).

The consequences of using a different language can be drastic. The legislation applicable in both the Dutch-speaking and the French-speaking parts of Belgium stipulate the employer cannot invoke a document that’s written in a different language. On the other hand, employees can utilise such documents against their employers, even selecting favourable sections from, for instance, an English evaluation form. However, the employer is not allowed to use the unfavourable aspects of the same form. Modifying the document to the appropriate language does not have a retroactive impact. Furthermore, when it comes to contracts, employees are obliged to sign them.

In the Brussels region, the issue is of limited importance, as the only sanction is that the worker has the right to ask for a translation at the expense of the employer. This translation does have retroactive effect to the date the initial document was drafted, and the employee doesn’t have to sign it.

On 16 April 2013, the European Court of Justice held in its judgement C-202/11 that Belgian law was contrary to the freedom of movement for workers under European law. The court said it might deter foreign employees from working in Belgium if their employer had to use a language the employee does not (fully) understand. The Belgian legislation on the use of languages does not take into account whether or not the employee understands the required language. So Dutch is required if an employee is based in the Dutch speaking part of Belgium, even if this employee does not understand Dutch. While an employer is free to add a translation, only health and safety law stipulates a legal obligation to provide workers with safety instructions in a language the worker understands.

The European Court of Justice followed a similar reasoning in its judgment C-15/15 of 21 June 2016 concerning the free movement of goods. The issue at stake in that case was the requirement that companies based in the Dutch-speaking part of Belgium issue their invoices in Dutch.

Despite these judgements by the European Court of Justice, the Belgian legislation on the use of languages in employment matters is still the same, as confirmed by the Belgian Supreme Court in a judgement of 7 September 2023. It is a principle of European law that if a national legislation is considered to be void due to it being contrary to European law, this nullity only applies in cases covered by European law, hence cases with an international aspect. When it comes to purely domestic files, European law doesn’t apply. The arguments based on European law do not apply to purely internal situations.

The case of 7 September 2023 concerned a dispute between two people based in the Dutch-speaking part of Belgium, not involving any international aspect. The Supreme Court considered that documents written in English were void.

Employers should make sure all contracts signed with employees are written in the required language, with a translation being added if appropriate, so there’s no room for any debate on contracts becoming unenforceable because of a violation of the legislation on the use of languages in employment matters.