[lg policy] blog: Going (beyond) Dutch

Harold Schiffman hfsclpp at GMAIL.COM
Fri Apr 19 15:11:58 UTC 2013

 Going (beyond) Dutch Apr 18th 2013, 17:51 by S.A.P. | LOS ANGELES

FOR small European states, language policy calls for a delicate balancing
act. Luxembourg has three official languages, Switzerland four, and Belgium
three. In Luxembourg, the distinction is mostly functional: different
languages for different social spheres. In Switzerland and Belgium,
languages are instead spread geographically. This geographic spread seems
to simplify matters on paper, creating clear lines between language
communities. Belgium’s constitution, for example, divides the country into
four linguistic regions: the Dutch-speaking north (Flanders, or the Flemish
Region), the French-speaking south (Wallonia), the small German-speaking
regions in the east, and the bilingual (Dutch-French) capital, Brussels.
But with the country divided roughly in half between Flanders and Wallonia,
laws and policies become proxies for deeper cultural tensions. The standoff
between the Dutch- and French-speaking communities was partcularly tense
after the 2010 elections, when it took over 500 days to form a government.

In part because of this longstanding division, some Flemish and Wallonian
laws are fiercely protective of Dutch and French. But the European Court of
Justice (ECJ) thinks at least one of those laws has unacceptable
consequences. Flemish law had previously considered only Dutch-language
contracts authentic. Contracts in other languages would be nullified. Anton
Las, from the Netherlands, had been contracted to be chief financial
officer of PSA Antwerp, a Belgian subsidiary of a Singaporean port
operator. His contract was in English. Unfortunately for Mr Las, his
contract was nullified under the Dutch-only law, and he was booted from the
company. Denied a job, he sued. A Belgian court, unsure of how to answer,
asked the ECJ to make a preliminary ruling on that section of Flemish
law. On Tuesday, the ECJ decided that the policy violated EU law.

The ECJ agreed<http://curia.europa.eu/juris/document/document.jsf?text=&docid=136301&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1027954>that
preserving and promoting a country’s language is important. But the
laws must be proportionate to the need. Because EU law protects workers'
freedom of movement, restrictions on that freedom must be carefully
crafted. The court worried that a Dutch-only law would dissuade people from
moving to Flanders and taking up work.

[T]he objective of promoting and encouraging the use of Dutch, which is one
of the official languages of the Kingdom of Belgium, constitutes a
legitimate interest which, in principle, justifies a restriction on the
obligations imposed by Article 45 TFEU [the EU law covering freedom of
movement for workers].

... [But] in order to satisfy the requirements laid down by European Union
law, legislation ... must be proportionate to those objectives.

The court recommended allowing foreign transactors to use a mutually
intelligible language:

[P]arties to a cross-border employment contract do not necessarily have
knowledge of [Dutch]. In such a situation, the establishment of free and
informed consent between the parties requires those parties to be able to
draft their contract in a language other than [Dutch].

The ECJ’s preliminary rulings are binding, so the Flemish government will
have to rejigger its policies. The law in question here was written with no
flexibility at all, suggesting that it served linguistic nationalism more
than genuine need. Belgium has outsized language worries for its size, so
it will be curious to see how Flemish businesses react to new rules. I
suspect that more flexibility will revitalise, not doom, business there.


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