Employees coming to work in Belgium must have a secondment letter drafted in Dutch or French. Bart Stroeken of Loyens explains this recent Labour Court ruling.

According to the linguistic legislation in Belgium, the language to be used in employment relations, whether written or verbal, must be Dutch or French, depending on which region the concerned employer is situated in.

Both Flanders (the Flemish region) and the Walloon region have regional legislation in this issue. The Flemish Linguistic Decree of 19 July 1973 rules that employers with a company based in Flanders must use Dutch. According to the Walloon Linguistic Decree of 30 June 1982, employers based in the Walloon region must use French.

Because the regional authorities in Brussels don't have their own legislation in this field they have to revert to the older national linguistic legislation which still applies to the Brussels region (the Royal Decree of 18 July 1966).

According to this legislation, all used documents must be translated into French or Dutch, depending on the language of the employee to whom the document is directed. The legislation doesn't mention the language of verbal communication.

In a recent decision, the Brussels Labour Court of Appeals decided that the Flemish Linguistic Decree of 19 July 1973 also applies to a foreign employer that seconds a foreign employee to Flanders.

In the above case, the seconded employee was deemed to be an employee of the local Belgian branch, rather than remaining an employee of the seconding foreign company.

Consequently the Court ruled that the letter of assignment which the seconding company sent to the employee, should have been translated into Dutch, although none of the parties were Dutch-speaking. Since this had not taken place, the document was held null and void with respect to the employer.

Although the Court, in this case, has interpreted the Flemish Linguistic Decree very broadly, it is a precedent that could have severe consequences for future secondments.

Therefore foreign companies that second employees to Belgium, should take Belgian linguistic legislation into account.

The Flemish Linguistic Decree rules that all documents or actions that are not drafted in Dutch be held null and void. They can be replaced by a translation, but such translations will only be considered to take effect as of the date that they are carried out and not as of the date of the original document or action in the other language, unless the employee agrees. Moreover, in the case of a translation of a contract, the employee will have to sign the translated contract again to make it valid.

Integral to this ruling is that the documents or actions are only considered to be null and void with respect to the employer. The nullity can do no damage to the employee. In other words, employees can invoke the clauses of an anulled document that are of advantage to them.

The employer is liable for any losses to an employee or third party that are caused by the document or action being null and void.

The Walloon Linguistic Decree stipulates that documents that are not in French are null and void. With regard to the replacement of such a document, the same ruling as in Flanders applies.

The national linguistic law, that applies to the Brussels region, does not provide for the nullity of a document that is not drafted in either French or Dutch, as appropriate. It only imposes a translation of such a document, which can be done unilaterally (that is, by the employer) without the consent of the employee.

Bart Stroeken is a lawyer working with Loyens in Belgium