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Mandatory use of National Languages for Contractual Documents: A European
Perspective
Mar 01, 2017
QuickCounsel
By Caroline Greco, Rontavian Mack,
Sabridass Ponnou, and Charlotte Robin. University of Montpellier.
Overview
Article 67 of the Treaty on the Functioning of the European Union (TFEU) provides that the Union
respects different traditions. This respect has led European member States to enact statutes providing for the mandatory use of
national languages (I). However, these national statutes may be challenged by European rules (II).
I. The mandatory use of national languages imposed by the European member States European member States impose the use of national languages to facilitate understanding between parties to commercial contracts
(A), protect employees (B) and consumers (C).
A. The mandatory use of national languages for commercial contracts
1. In Spain
In Spain, according to article 3-1 of the Spanish Constitution, Spanish is the official language. However, article
3-2 recognizes each regional language of the autonomous communities as official. Commercial contracts can be written both in
Spanish or in a regional language. Article 15 of the language policy’s law of Catalonia states that using a
mandatory language in private documents is not a formal requirement allowing for the use of any language. However, drafting
commercial contracts have to be done in one of the two official languages.
2. In France
In France, the law of the 4th of August 1994, referred to as the
private entities.
a.
Toubon Law
establishes a different standard for public and
Public entities have a general obligation to use French when addressing users. The
Court
French Constitutional
ruled that when providing a public service, it is mandatory to use French.
According to Article 5 of the Toubon Law, all contracts concluded by a legal person under public law must be written in
French, except for the contracts involving foreign co-contractors. These contracts must have a French version in
conjunction with copies in various other languages. These other copies are also legally binding.
b.
The Toubon law subjects private entities to less stringent rules. However, in the French civil code, we find rules on
private entities and use of language. For instance, article 1127-1 of the French Civil Code states that when
contracting by electronic means “The language offered for the conclusion of contract, which must include the French
language”. More specifically, the article L224-76 of the French Consumer
professionals must disclose information to consumers in their national language.
Code provides that the
The Toubon Law does not apply to international business contracts. The principle is that the parties may choose the l
anguage in which the contract is written.
B. The mandatory use of national languages for labor contracts
In France, a protective regime exists to ensure that workers have a full understanding of their contractual obligations. For instance,
article L. 1221-3 of the French Labor Code provides for the drafting in French of labor contracts, and grants the
possibility for foreign employees to obtain a contract that has been translated to their national language. To the same end, article
L. 1321-6 of the French Labor Code states that all documents needed to perform the contract should be in French. The
French Court of Cassation ruled, on the ground of article L. 1321-6 of the French Labor Code, that all the documents
containing employee’s obligations that are necessary to perform the contract should be written in French. According to this decision,
employee wage agreements not written in the proper national language are not enforceable against employees, even if the
employee speaks the aforementioned language while performing its labor contract. This rule is applicable even though the employee
is performing his work in a foreign language, in the instant case, in English.
C. The mandatory use of national languages in advertising
In France, articles 2, 3 and 4 of the Toubon Law provide for the use of French for the commercialization of goods and products
available to consumers. These articles serve to protect the consumer by insuring a specific protection in regards to insurance
contract, guarantee, invoices and financial services.
The Court of Appeal of Paris ruled that legislation stating that only Spanish could be used for “heat gun” instructions infringed on
Toubon Law. The latter was found to be a law of public order to be respected according to article 1st of the decree that
penalizes the infraction of the Toubon Law of a fourth-class offence’s fine. The French system provides for protective provisions
when consumers are involved. As a consequence, in regards to online advertising, publications must be written in French; an
exception being for foreign websites fully written in a foreign language.
In more recent events, the French 2024 Olympic bid committee is facing legal action because of their promoted
slogan: “Made for Sharing”. The allegation is made that the slogan violates the laws put in place to protect the French language.
The French 2024 Olympic bid committee is defending the slogan by stating that the audience of the slogan is the international
market.
II. The mandatory use of national languages challenged within the European member States
The Court of Justice of the European Union (CJEU) has to consider the protectionist effects of its national rules in matters such as
business (A), labor (B) and consumer (C) areas.
A. The mandatory use of national languages may affect the free circulation of goods
A recent case rendered by the CJEU illustrates the control on national rules affecting the free circulation of goods. A
Flemish decree required that every company having its registered office in its territory to draft acts and documents in the
Dutch language.
In a relationship governed by the decree, invoices proving the business relationship between a Belgian and an Italian company were
written in Italian instead of Flemish. One party claimed the nullity of the invoices because they were infringing on the linguistic rules
of the Belgian public order. Indeed, the Belgian statute imposed on every company having its registered office in the territory to
draft acts and documents in Flemish. The obligatory details and terms of use were written in Italian instead of Flemish.
Reference was made to the Court of Justice of the European Union to determine whether this statute constituted an obstacle to the
free circulation of goods in Europe under article 45 of the TFEU.The Court of Justice of the European Union ruled that the Flemish
linguistic statute constituted a restriction to the aforementioned freedom according to article 45 of the TFEU.
Thus, the mandatory use of the national Flemish language may constitute an obstacle in regards to the free circulation of goods
when it affects the commercialization of products in the European territory.
B. The mandatory use of national languages may affect the free movement of workers
A case rendered by the CJEU in 2013 shows the respect of the European rules on national rules providing for employees.
A Flemish decree so called “decree of September” provided for a mandatory use of Dutch to cross-border employment
contracts.
However, the mandatory use of Dutch was claimed to have a dissuasive effect on non-Dutch-speaking employees and employers
from other member States.
Reference was made to the Court of Justice of the European Union to determine whether this statute created an obstacle to the free
movement of workers in Europe.
The CJEU ruled that the mandatory use of Dutch constituted a restriction on the freedom of movement for workers. The Court of
Justice of the European Union based its reasoning on article 45 of the TFEU. This article precludes the legislation of a federated
entity of a member State. It requires all employers which established place of business is located in that entity's territory to draft its
cross-border employment contracts exclusively in the official language of that federated entity. Failing to do so would result in
declaring the contract null and void. The CJEU stated that the decree’s implementation did not comply with European regulation
because it was not proportionate to its aim. This decision led to the modification of the decree in April 22nd, 2014 that now
because it was not proportionate to its aim. This decision led to the modification of the decree in April 22nd, 2014 that now
“encourages” the use of Dutch for employment contracts in this specific region.
C. The mandatory use of national languages may affect consumer rights
A case rendered by the CJEU demonstrates the specific protection of consumers. A royal Belgian decree provided for a
mandatory use of Flemish for documents geared toward consumers.
Mineral water companies imported and distributed various kinds of French and German mineral water in Belgium. The bottles were
tagged in French and German and commercialized in the Flemish region.
Reference was made to the CJEU to determine whether this decree requiring the labeling of the bottle in Flemish constituted an
obstacle for consumers’ rights.
The CJEU ruled that the national obligation was more restrictive than the European directive whose article 14 provide for
“language easily understandable” whereas the Belgian legislation aimed at imposing a language: Flemish.
The CJEU ruled that when national laws create an obligation upon member States to prohibit products from their commercialization,
it is required that the tagging is done in a “language easily understandable” by the consumer. Member States cannot impose an
exclusive language or at least one language: it is contrary to the European directive, which already grants consumers adequate
protection.
In a case rendered in 1999, the CJEU ruled that member States can compel specific mentions in the language of the place
of commercialization or in a language that is easy to understand. Indeed, other considerations must be taken into account such as
the prohibition of misleading information on the tagging.
Conclusion:
The use of national language does not only apply to contractual documents but also to judicial ones. The
European
regulation regarding judicial and extrajudicial documents in civil or commercial matters, conditions the validity of the notification
to the translation of the language spoken by the addressee or the place of notification. However, according to the CJEU’s ruling ,
a regularization can be provided to overcome this mandatory language obstacle.
Additional Resources
SPAIN
B. Joan I Mari, “The cornerstones of language policy in Catalonia”
FRANCE
The application circular of the Toubon Law
M.-V. Arras, “The language in international contracts”
J.-M. Coblence and J.-P. Sala-Martin, “Communication commerciale et publicité sur Internet”
EUROPE
D. Hanf, K. Malacek, E. Muir, “Langues et construction Européenne”, Cahiers du Collège
d’Europe n°10, P.I.E PETER LANG S.A.
http://www.acc.com/legalresources/quickcounsel/mandatory-use-of-national-languages.cfm