The Belgian Constitution defines four linguistic regions in which uniform rules are applied as regards the use of languages, particularly in relation to administrative matters: the French-speaking region, the Dutch-speaking region, the German-speaking region and the bi-lingual Brussels-Capital region.

Belgian law provides:

‘In the local services established in the French-speaking, Dutch-speaking or German-speaking regions, no person may be appointed or promoted to an office or post if he does not know the language of the region.

The admission and promotion examinations shall be conducted in the same language.

The candidate shall be allowed to sit the examination only if it can be seen from the required diplomas or educational certificates that he has studied in the aforementioned language. In the absence of such a diploma or certificate, knowledge of the language must first be established by an examination. If the office or post is to be filled without an admission examination, the requisite language skills shall be established by means of the evidence referred to in that respect in the third subparagraph.’

On 22 March 2010, the Commission sent a letter of formal notice to the Kingdom of Belgium, in which it indicated that the requirement of one particular means of proving the linguistic knowledge, set out in the Belgian legislation as a pre-condition for access to posts in the local services in the French-speaking, Dutch-speaking or German-speaking regions, constitutes discrimination prohibited by Article 45 TFEU and Regulation No 1612/68.

The authorities of the Flemish Community replied by letter of 19 July 2010, expressing their willingness to bring the Flemish legislation concerning the requirements of public employers into line with EU law. By letter of 8 November 2010, the Commission asked the Kingdom of Belgium to send it a draft legislative amendment and a precise and detailed timetable for adoption. By note of 20 December 2010, the Flemish Community authorities sent a preliminary draft decree which was scheduled to be adopted in January 2011. Having failed to obtain any other response from the Kingdom of Belgium, on 20 May 2011 the Commission sent it a reasoned opinion asking it to take the necessary measures in order to comply with that opinion within a period of two months from receipt of that opinion.

The Kingdom of Belgium replied by letter of 2 December 2011, in which it reaffirmed its willingness to bring Belgian law into line with EU law, but also referred to the complexity of the issue of language use in administrative matters within that Member State because of the existence of several linguistic regions and of particular circumstances linked to the allocation of competences between various federal entities. Subsequently, a decision implementing the decree of the Flemish Community was sent to the Commission. The Frenchspeaking Community also sent the Commission a copy of the decree of 7 November 2013 on the proof of language skills required by the laws on the use of languages in administrative matters. However, that decree still needed to be completed by an implementing decision. Furthermore, the Commission did not receive any information concerning the German-speaking region. In those circumstances, the Commission decided to bring the present action.

Consideration by CJEU

In accordance with the Court’s settled case-law, all the provisions of the TFEU relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State.

Those provisions and, in particular, Article 45 TFEU thus preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the fundamental freedoms guaranteed by the Treaty. It is true that, under the second subparagraph of Article 3(1) of Regulation No 492/2011, Member States are entitled to lay down the conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled. However, the right to require a certain level of knowledge of a language in view of the nature of the post must not encroach upon the free movement of workers. The requirements under measures intended to implement that right must not in any circumstances be disproportionate to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.

In the present case, it must be acknowledged that it may be legitimate to require a person applying to take part in a competition held in order to fill a post in a local service — that is to say in a concessionaire managing a public service or charged with a task carried out in the public interest in a municipality — to have knowledge of the language of the region in which that municipality is located of a standard commensurate with the nature of the post in question. It may be considered that a post in such a service requires an ability to communicate with the local administrative authorities and, as the case may be, with the public. In such a case, the possession of a diploma certifying that the candidate has passed a language examination may constitute a criterion for assessing the required linguistic knowledge.

However, to require — as the Belgian laws do — that a person applying to take part in a recruitment competition provide evidence of his linguistic knowledge exclusively by means of one particular type of certificate, issued only by one particular Belgian body tasked with conducting language examinations in Belgium for that purpose, appears, in view of the requirements of the freedom of movement for workers, disproportionate to the aim pursued. That requirement precludes any consideration of the level of knowledge which a holder of a diploma obtained in another Member State can be assumed to possess on the evidence of that diploma, having regard to the nature and duration of the studies which it attests. Moreover, that requirement, although applicable to Belgian nationals and to those of other Member States alike, in practice puts nationals of other Member States wishing to apply for a post in a local service in Belgium at a disadvantage. That requirement effectively forces interested persons residing in other Member States, for the most part nationals of those Member States, to travel to Belgium for the sole purpose of having their knowledge tested in an examination which is mandatory for the issuance of the certificate required for their application. The additional expenses which that requirement entails are liable to make it more difficult to gain access to the posts in question.

The CJEU held that:

By requiring candidates for posts in the local services established in the French-speaking or German-speaking regions, whose diplomas or certificates do not show that they were educated in the language concerned, to provide evidence of their linguistic knowledge by means of one particular type of certificate, issued only by one particular Belgian body following an examination conducted by that body in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Article 45 TFEU and Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union.

Why is this decision important?

The mobility of the modern labour force means that a variety of languages can now be heard in many workplaces. Employers need to be careful that language requirements for certain positions are not a form of discrimination.