PROPORTIONALITY IS KEY

Ophthalmologists – whether as employer or employee – should seek legal advice if in doubt about how to interpret their employment contracts in light of a recent decision by the EU’s highest court. The decision, by the European Court of Justice, arose over a lawsuit by a Dutch executive against his former Belgian employer. At issue in the case was whether the Belgian employer – a subsidiary of the multinational company – could rely on the terms of an employment contract to limit the amount of money that it had to pay to Anton Las when it dismissed him as its chief financial officer. The contract, which was drafted in English, provided that Mr Las would receive nine months’ salary if dismissed without notice. Lawyers for Mr Las argued that the terms of the employment contract should not apply because the contract did not comply with Belgian law, which stipulated that any employment contract concluded in Flanders be written in Dutch. On that basis, Mr Las made a claim for 20 months’ salary and for a number of additional payments. On first blush, Mr Las appeared to have a strong case that the employment contract was void because it violated the “Flemish Decree on Use of Languages,†which had been adopted in 1973. According to the decree, “the language to be used for relations between employers and employees, as well as for company acts and documents required by law, shall be Dutch.†The decree also provided that “all documents intended for their staff shall be drawn up by employers in the Dutch language.†The decree further provided that any “documents or acts that are contrary to the provisions of this decree shall be null and void.†In light of the wording of the decree, Mr Las brought his former employer to the Labour Tribunal in Antwerp to request the tribunal to declare the employment contract null and void and to determine how much compensation he should receive. Preliminary ruling Before deciding the case, the tribunal asked the Court of Justice, which sits in Luxembourg, to make a preliminary ruling on whether the Belgian law unreasonably interfered with established EU legal principles, particularly the right to move freely as a worker within the EU. The right to move freely to work, which is enshrined in Article 45 of the Treaty on the Functioning of the European Union, provides that “such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.†For its part, the Belgian government defended the decree by arguing that the law promoted the use of the Dutch language in Flanders, protected the rights of Dutchspeaking employees working in the region, and helped the Belgian government administer labour affairs in the region. In examining the Belgian decree, the Court of Justice acknowledged that the Belgian government’s objectives were legitimate and, in principle, could have justified restrictions on the exercise of such a fundamental right as the freedom of workers to move within the EU. “However, in order to satisfy the requirements laid down by European Union law, legislation such as that in issue in the main proceedings must be proportionate to those objectives,†the court held. In balancing the legitimate objectives of the Belgian government with the freedom of worker movement, the court noted that the penalty stipulated in the Belgian decree was too harsh because it mandated that any document drawn up in a language other than Dutch be considered null and void. The court added that “parties to a cross-border employment contract do not necessarily have knowledge of the official language of the Member State concerned. 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 the official language of that Member State.†To that end, the Court of Justice suggested that had the Belgian decree required an employment contract to be drawn up in Dutch and in a second language that both parties understood, it might have viewed the decree more benignly. Laws that “would permit the drafting of an authentic version of such contracts in a language known to all the parties concerned, would be less prejudicial to freedom of movement for workers than the legislation in issue in the main proceedings while being appropriate for securing the objectives pursued by that legislation,†the court ruled. On that basis, the court ruled the Belgian decree unlawful because it went “beyond what is strictly necessary†to attain the Belgian government’s objectives and thus “cannot therefore be regarded as proportionate.†* For details about the decision, Anton Las-v- PSA Antwerp NV, visit the Court of Justice website at www.curia.eu.