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Academia 18
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Free Movement of Persons and Language Legislation of the Member States of the EU Some Reflections after the Recent Judgement in Bickel and Franz.
Academia Nr: 18 (März - Juni / marzo - giugno 1999)by Bruno De Witte
Today, an ever growing proportion of jobs requires precise and extensive linguistic skills. Due to the linguistic variety existing in Europe, the language skills required from those seeking a job vary from country to country, and often from region to region in the same country. In fact, linguistic job requirements and, more generally, the prospect of a difficult adaptation to a new linguistic context, constitute an invisible barrier for European citizens who might consider migration to another country of the European Union. This may be one of the reasons why the rate of intra-European migration is considerably lower than migration between different regions of, say, the United States of America.
This linguistic diversity within Europe is considered to be a value worthy of protection, and the institutions of the European Union do not have the competence to adopt a global, Europe-wide language policy. Quite to the contrary: the Treaty establishing the European Community, in the version modified by the Treaty of Maastricht in 1992, expressly holds that the EC shall respect the existing patterns of linguistic diversity. Despite this solemn p l e d g e , n a t i o n a l linguistic policies do come, to some extent, within the scope of European Community law, namely whenever they constitute a barrier to economic integration.
This connection between language use and economic integration arises with regard to each of the central principles of economic integration: the free movement of goods, the free movement of services and the free movement of persons. It is the latter principle which will be examined in this article.
Free movement and non discrimination,two central EU principles
The principle of the free movement of persons was proclaimed already by the EEC Treaty (as it was then called) when it was concluded in 1957, and was gradually realised in the following years and decades. It means that the EU "Member States" (a global term which comprises the public authorities at the national, regional and local level) may not adopt or apply legal measures which restrict such free movement. European citizens have, in principle, the right to enter the territory of other EU states than their own, and to remain there; their most important right, once they live in that other European country, is the right not to be discriminated by the host state on account of their nationality.
This central principle of non-discrimination has implications for language legislation in the EU countries. This was acknowledged, already very early on, in a Regulation adopted by the Council of the (then) European Communities in 1968 which was entirely devoted to the practical realisation of the equal treatment of migrant workers originating from other Community countries. This Regulation No.1612/68 prohibited not only direct discriminat i o n a g a i n s t those migrants in the field of employment (something which resulted directly from the text of the EEC Treaty itself) but, in addition, it also prohibited indirect discrimination against them, that is, measures having as their exclusive or principal aim or effect to keep nationals of other Member States away from the employment offered. But to this rule prohibiting indirect discrimination, the Council added in the same Article 3 of Regulation 16162/68 the qualifying statement that the prohibition does "not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled." In other words, when a Member State makes access to employment dependent on linguistic proficiency, there is a presumption of an indirect discrimination against European Union migrants, unless it can be shown that such proficiency is needed for that particular job.
This rule applies to employment both in the private and in the public sector. The fact that the public sector is also concerned was probably not immediately evident back in 1968, because of the exception clause in Article 48, paragraph 4, of the EEC Treaty which states that the free movement of workers does not apply to "employment in the public service". That clause was originally interpreted by the States as meaning that employment in all governmental institutions and public services could be reserved to their own nationals, so that the question of a possible indirect discrimination against foreign nationals through the use of language requirements would not even arise. Yet, a series of judgements of the European Court of Justice have drastically narrowed down this exception. The present legal situation is that European Union citizens can only be excluded from those public sector jobs which directly involve the exercise of state authority (justice, police, administration at the higher levels) but not from the much more numerous jobs in public service sectors such as health care, education or transport. There, the prohibition of indirect discrimination through the use of linguistic conditions fully applies. That is important because it is precisely in the public service sector that a requirement of linguistic proficiency is most often, or at least most explicitly, imposed on job applicants or candidates for promotion. One may even say that, as a rule, all plurilingual countries have more or less formal rules of this kind, which have been enacted in the form of national legislation (as in Belgium) or in the form of regional legislation limited to part of the country (as in some parts of Spain and of Italy, including of course South Tyrol).
The Groener case: an indirect discrimnation
The question of whether such requirements are compatible with EC law was squarely raised in the Groener judgement, a case originating in Ireland and decided by the Court of Justice of the European Communities in 1989. Anita Groener was a Dutch national acting as a part-time teacher of painting at the College of Marketing and Design in Dublin. In order to be appointed on a permanent basis, she had to show an adequate knowledge of the Irish language. For that purpose, she took a two-weeks crash course, but failed in the subsequent examination. This was not a formal discrimination against foreigners as Irish citizens must demonstrate an equivalent knowledge of Irish for access to teaching functions. Article 8 of the Irish Constitution proclaims Irish to be the first national language, as well as the official language of the country, together with English. This meant, according to constitutional law, that the government was entitled to take measures in order to promote the use of Irish and, among other things, to impose on all teachers in the public education system a duty of proficiency in Irish. Yet, Anita Groener argued, with some plausibility, that the requirement of Irish did not serve any practical purpose in her case (she would never be required actually to use Irish in her job) and, instead, was a measure resulting in the exclusion of foreigners and therefore a form of indirect discrimination prohibited by Article 3 of EC Regulation 1612/68. Through a preliminary reference by the Irish court, the European Court of Justice found itself confronted with a dispute which was deliberately presented by the Irish government as a value conflict between the principles of the common market and Irish national identity. The Court of Justice upheld the position of the Irish government with the following words: "The EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language. ... The importance of education for the implementation of such a policy must be recognised. Teachers have an essential role to play, not only through the teaching which they provide but also by their participation in the daily life of the school and the privileged relationship which they have with their pupils. In those circumstances, it is not unreasonable to require them to have some knowledge of the first national language."
The interpretation given by the European Court to the question whether certain linguistic requirements are 'required by reason of the nature of the post to be filled' (the words used in Article 3 of Regulation 1612/68) is thus rather timid from the perspective of the free movement of persons, but it is quite respectful of the cultural values protected by Irish law. Yet, the Court did not grant full discretion to the Member States in the definition of their linguistic policies. The Court rather confirmed ist doctrine that any national policy standing in the way of one of the common market freedoms is to be carefully scrutinised, even if it involves a policy area (like language policy) in which a role for the European Community is not expressly recognised by the Treaty. The Court reserved to itself the power to decide in future cases whether national language regulations have a disproportionate impact on the rights of Community nationals. The concrete question whether the legal rules which, for access to public employment in South Tyrol, cumulatively required Italian nationality, membership of one of the three linguistic communities of the region and good knowledge of both German and Italian, was compatible with European law, was never raised, so far, before the European Court of Justice, but has been discussed extensively in the local media and in legal writing.
The Mutsch case or discrimination on ground of nationality
So far, I have focused on language legislation relating directly to access or conditions of employment. In a judgement of 1985 which, at the time, caused quite some surprise, the European Court of Justice has made clear that other aspects of language law could also be affected by the European Community rights of free movement. Mr. Mutsch, a Luxembourg national who was living and working in Belgium (where he had, in fact, lived all his life) was prosecuted and insisted that the trial should not be held in French, the normal language used by the competent criminal court, but in German. Indeed, the Belgian nationals belonging to the German- speaking minority in the East of Belgium (the area where Mr. Mutsch happened to live) have the right to require that trials against them be conducted in German rather than French. However, Mr. Mutsch was denied that benefit because, under Belgian law, the right to use German was reserved to Belgian nationals only. Mr. Mutsch's argument that this was discrimination on grounds of his nationality, and was in contrast with EC law, was upheld by the European Court of Justice. The use of language in judicial proceedings has no direct connection with conditions of employment, but the Court insisted that equal treatment should not only be recognised to EU migrants in relation to the work itself but also in respect of all socalled "social advantages", even if they were unrelated to the contract of employment. The Court held that the possibility, for a migrant worker, to use his own language in proceedings before the courts was such a social a d v a n t a g e and that it could meaningfully meaningfully contribute to the integration of the migrant in the host country, and therefore facilitate the exercise of the free movement of persons.
And how about Germans and Austrians residing in South Tyrol?
In the context of South Tyrol, the Mutsch judgement means that, in those cases where the German language may be used in court proceedings, that right may not be reserved to Italian citizens, but should be extended to EU citizens (in practice, mainly Germans and Austrians) residing in South Tyrol. The effect of EC law on the South Tyrol regime of language use before the courts was, in fact, the object of the most recent development in this story, namely the very recent judgement of the European Court of 24 November 1998, in the case of Bickel and Franz, an Austrian and a German national who claimed the right to use German during criminal proceedings conducted against them in South Tyrol (more precisely, before the Silandro section of the Bolzano court of first instance). The right to opt for the use of the German language was granted as part of the "package" of measures adopted to settle the South Tyrol minority dispute, and this right is therefore limited to residents of the province of Bolzano. No other persons, neither Italians living elsewhere, nor foreigners, are allowed to opt for German. The question, referred from Silandro to the European Court of Justice, was whether the fact that Mr. Bickel and Mr. Franz, as Austrian and German citizens, could not opt for German constituted a discriminatory restriction of the free movement of persons. The facts may seem very similar to those of Mutsch, and the answer of the European Court therefore predictable, but there was one crucial difference. Unlike Mr. Mutsch, Bickel and Franz did not live in South Tyrol; Mr. Bickel is an Austrian lorry driver who was being prosecuted for driving under the influence of alcohol on Italian territory, whereas Mr. Franz is a German national who was prosecuted for carrying a prohibited knife when visiting Italy as a tourist. This makes quite a difference from the perspective of European law. Indeed, neither of the two persons was a migrant worker and therefore they could not invoke the rights given to migrant workers by the Regulation 1612/68 as it had been interpreted by the European Court in Mutsch. However, the free movement of persons has, over the years, become much wider than a right to go a and work in other European countries, or to set up business there. In fact, Mr. Franz and Mr. Bickel came under the protection of EC law in a different way, namely under the umbrella of the freedom to provide services.
This approach resulted directly from earlier judgements of the European Court of Justice, which had held that the freedom to provide services, proclaimed by the EC Treaty, protects the right of those people providing a service to cross the border into other EU countries than their own (this is the case of Mr. Bickel, who, by driving his lorry, is contributing to the provision of a cross-border transport service), but also the right for everyone to go and receive services in other European countries, even if that is not the primary purpose of the visit. Thus, a 'simple' tourist such as Mr. Franz, who is likely to receive 'services' in a bar, restaurants or hotel, finds himself in a situation governed by Community law once he has crossed the border! As Article 6 of the EC Treaty generally prohibits discrimination on grounds of nationality within the scope of the Treaty, and as Bickel and Franz found themselves within the scope of the Treaty for the reasons explained before, they were entitled to be treated in the same way as the country's own nationals. They, too, could insist on the use of the German language during their trial, even if that option had been created within the strict context of a minority protection regime and for the sole benefit of German- speaking South Tyroleans. The Italian legislation will have to be adapt-ed accordingly. The limits of the judgements in Mutsch and Bickel and Franz should be clearly kept in mind. EU law does not affect the power of the Member States of the European Union to decide freely whether or not they will grant linguistic rights to the minorities living on their territory, and how extensive these rights should be. Only, if they choose to grant such minority language rights, and, more generally, if they organise some form of official plurilingualism, then they cannot exclude EU citizens (whether residents or simple 'visitors') from the benefit of that language regime. This is the limited restriction which the European principle of the free movement of persons imposes on national (or regional) language legislation. Whether the European Union should go further and develop some form of harmonisation of national or regional language rules is quite another matter, which will not be considered here.
Prof. Dr. Bruno De Witte, Professor of European Law, University of Maastricht and Member of the scientific board of the European Academy of Bolzano/Bozen
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