CELEX: 61984CC0137
Language: en
Date: 1985-03-28 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 28 March 1985. # Criminal proceedings against Robert Heinrich Maria Mutsch. # Reference for a preliminary ruling: Cour d'appel de Liège - Belgium. # Protection of the rights of nationals of the Member States. # Case 137/84.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 28 March 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               A. 
            
            
               
                        (1)
                     
                     
                        The reference for a preliminary ruling with which this opinion is concerned, made by the Cour d'Appel [Court of Appeal], Liège, in connection with criminal proceedings, is based on the following circumstances :
                        On 27 August 1981 an inhabitant of a German-speaking municipality in eastern Belgium clashed with members of the Belgian Gendarmerie after an extended ‘pub-crawl’. In the course of the dispute they came to blows. The questioning of the person subsequently charged by the Belgian Gendarmerie (Eupen District, St. Vith Brigade) was carried out in the German language, since he wished to make his statement in German. The records and forms of the Gendarmerie were also completed in German. Only information from the central criminal records office is included in French in a personal file drawn up in German. The summons to appear for trial was served on the accused in French but with a German translation.
                        Since the accused did not appear at his trial, on 2 November 1982 the Tribunal de Première Instance [Court of First Instance], Verviers, found him guilty in absentia and ordered him to pay a fine. The accused applied to have that judgment set aside and at the same time requested that the proceedings should take place in German. By judgment of 23 November 1982 the Tribunal de Première Instance, Verviers, in criminal session,
                        granted the application and ordered that the proceedings continue in German;
                        the decision on costs was reserved.
                        The Public Prosecutor's Office appealed against that judgment to the Cour d'Appel, Liège. It took the view that the decision to continue the proceedings in German was contrary to law, on the ground that the accused is not Belgian and therefore has no right to be tried in German.
                        At this point I think it is necessary to provide some additional information regarding the accused and the Belgian legislation on the use of languages in the courts.
                        The accused was born in 1957 in Thommen, a village in the municipality of Burg Reuland in the German-speaking region of eastern Belgium. According to an attestation of the municipal administration of Burg Reuland dated 28 January 1981 he has resided in that municipality since his birth, or at least resided there until 1981. The accused works as a roofer.
                        Article 17 of the Belgian Law of 15 June 1935 on the use of languages in the courts provides as follows:
                        ‘Proceedings in the Tribunaux de Police [local criminal courts] of Eupen and St. Vith shall take place in German unless the accused requests in accordance with Article 16 that they take place in French.
                        Proceedings in the Tribunaux de Police of Malmédy, Aubel and Limbourg shall take place in French unless an accused person of Belgian nationality requests in accordance with Article 16 that they take place in German.
                        Where an accused person of Belgian nationality resides in a German-speaking municipality within the jurisdiction of the Tribunal Correctionnel [criminal court], Verviers, and so requests in accordance with Article 16, the proceedings before that court... shall take place in German’.
                        As the Cour d'Appel, Liège, stated in its judgment of 23 November 1982, it is established that the accused is of Luxembourg nationality and now resides in St. Vith, a German speaking municipality within the jurisdiction of the Tribunal Correctionnnel, Verviers. The accused maintains that he speaks only German, or at least expresses himself more easily in that language; he has therefore requested pursuant to the second paragraph of Article 16 and the third paragraph of Article 17 of the Law of 1935 that the proceedings take place in German. According to those provisions, however, only Belgian nationals have the right to require that proceedings before the court in question take place in German.
                        Since, however, the Cour d'Appel, Liège, was in some doubt whether the restriction of that right to Belgian nationals was compatible with Community law, by judgment of 26 April 1984 it referred the following question to the Court for a preliminary ruling:
                        ‘Does the third paragraph of Article 17 of the Law of 15 June 1935 on the use of languages in the courts, which allows an accused person of Belgian nationality who resides in a German-speaking municipality situated within the territorial jurisdiction of the Tribunal Correctionnel, Verviers, to require that the proceedings take place in German, comply with the principles referrred to in Article 220 of the Treaty, which is intended to secure the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each Member State to its own nationals, that is to say, in the case in point, is it or is it not necessary, in a criminal case, to grant to a German-speaking EEC national, and in particular, as in the present case, a Luxembourg national residing in St. Vith, a German-speaking municipality, the right to require that the proceedings take place in German?’
                     
                  
                        (2)
                     
                     
                        The Italian Government, the Commission of the European Communities and the accused in the main proceedings have submitted observations on that reference for a preliminary ruling.
                        The Italian Government has submitted that national legislation for the benefit of language minorities normally applies only to members of the minority in question and to the area where the language is spoken. A member of a recognized language minority can not therefore require the use of his language in legal proceedings outside the area where his language is spoken. Nor can a national of another Member State require that the minority language be used on the grounds that he speaks the minority language (which is not the national language of the State in which he lives) and lives in the area where the minority language is spoken. In such proceedings interpreters must be used.
                        That result is compatible with the European Convention on Human Rights, since it provides adequate guarantees of equal treatment and the protection of the rights of the defence. It is also in conformity with Article 220 of the EEC Treaty, since foreigners are given the same rights as nationals who are not members of the linguistic minority and thus have no right to be tried in the minority language.
                        In conclusion the Italian Government proposes that the question referred by the Cour d'Appel, Liège, be answered in the negative.
                        The Commission points out first that as the question stands the answer can only be that a Member State is not obliged to grant the nationals of other Member States the rights referred to in Article 220 of the EEC Treaty so long as the Member States have not entered into an agreement as referred to in that article.
                        Since the national court wishes, however, to obtain an answer permitting it to rule on the compatibility with Community law in general of Article 17 of the Law of 1935, the question must be rephrased to ask whether there are any provisions of Community law which must be taken into account in interpreting Article 17. The provisions regarding the free movement of workers and the right of establishment may be relevant. The same principles apply to both those areas.
                        On the basis of a detailed analysis of the judgments of the Court regarding the free movement of workers, and in particular the term ‘social advantage’ as contained in Article 7 (2) of Regulation No 1612/68 on freedom of movement for workers, the Commission comes to the conclusion that the legal status of the accused in the main proceedings as a worker from another Member State gives him the right to require that he be tried in German.
                        The accused in the main proceedings has adopted the Commission's submission.
                     
                  
         
               B. 
            
            
               My position on this reference for a preliminary ruling is as follows.
               The Cour d'Appel, Liège, wishes to know whether the accused has a right to be tried in German on the basis of Article 220 of the EEC Treaty.
               Article 220 of the EEC Treaty provides that:
               ‘Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals:
               
                        —
                     
                     
                        the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each State to its own nationals; ...’
                     
                  That provision of the Treaty is intended to ensure, in so far as is necessary, that in each Member State of the Community nationals of other Member States are treated in the same way as nationals of that Member State. The right granted to nationals to use a particular language in the courts could certainly fall under that provision of the EEC Treaty.
               The Commission has pointed out that Member States are not obliged to guarantee the rights referred to in Article 220 of the EEC Treaty so long as they have not entered into an agreement to that effect.
               I do not think it necessary to go further into that question. The ‘necessity’ of such negotiations can be left open in this case, since the answer to the question posed by the Cour d'Appel, Liège, can be found in other provisions of Community law. It is however necessary to rephrase the question, as the Commission has also proposed. Such reformulation is of course nothing unusual for the Court. In its judgment of 11 April 1973 (
                     1
                  ) the Court stated that in proceedings under Article 177, although the Court has no jurisdiction to apply the Community rule to a specific case, nor, consequently, to pronounce on a provision of national law with regard to such rule, it can provide a national court with the factors of interpretation depending on Community law which could be useful to it in evaluating the effects of such provision. The Court acted in a similar manner in its judgment of 21 March 1985 in the Celestri case (
                     2
                  ) in which it referred the national court to the relevant provision, and I made a similar proposal to the Court last week in my opinion in the Frascogna (
                     3
                  ) case.
               It is therefore necessary to examine whether other provisions of Community law give the accused a right to be tried in German. It is possible that such a right flows from his legal status as a worker under Article 48 of the EEC Treaty and Regulation No 1612/68.
               Under the EEC Treaty freedom of movement for workers is one of the foundations of the Community. Along with the freedom of establishment and the freedom to provide services, guaranteed by Articles 3 (c), 48, 52 and 59 of the Treaty, it is one of the fundamental liberties of the Community system. (
                     4
                  ) First of all, Article 3 (c) states that the abolition of obstacles to the freedom of movement for persons is one of the purposes of the Community. Article 48 of the Treaty lays out in more detail what freedom of movement for workers means. It entails 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. The Court has never
               interpreted that provision of the Treaty narrowly. (
                     5
                  ) It has even given a restrictive interpretation to the exception contained in Article 48 (4) regarding the application of that article to employment in the public service. It has recognized that exception only in the case of employment involving direct or indirect participation in the exercise of powers designed to safeguard the general interest of the State. (
                     6
                  ) In the case of such posts the Court has accepted the requirement of ‘a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality’.
               That reasoning may be applied in these proceedings. There is a small set of rights and duties which may be reserved for nationals, since they require the ‘special relationship of allegiance’ referred to above. Those rights and duties may be contrasted with the range of social rights which must be guaranteed to all workers without discrimination.
               The question in what language criminal proceedings are to take place clearly belongs to that second group. Criminal proceedings certainly do not involve a ‘special relationship of allegiance’, so the safeguarding of the rights of the defence, which include the choice of the language of the proceedings, cannot be made dependent upon nationality.
               The duty to enact legislation laid down in Article 49 of the Treaty was fulfilled by the adoption of Regulation No 1612/68 on freedom of movement for workers within the Community. According to the preamble to that regulation freedom of movement entails first ‘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... ’.
               According to the fifth recital in the preamble:
               ‘Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit. of activities as employed persons and to eligibility for housing, and also that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country. ’
               In Title II of Part I of the regulation, on ‘Employment and equality of treatment’, Article 7 (2) provides as follows:
               ‘[a worker] shall [in the territory of another Member State] enjoy the same social and tax advantages as national workers’.
               In order to examine whether Article 7 of Regulation No 1612/68 implies the right for a German-speaking worker in eastern Belgium to be tried in German I shall begin with a brief discussion of the judgments of the Court on that provision.
               In the Ugliola case (
                     7
                  ) the Court was faced with the question whether Article 7 was to be interpreted as meaning that ‘a worker who is a national of a Member State and who is employed in the territory of another Member State is entitled to have the period of his military service taken into account in the calculation of the duration of his service with his employer, in accordance with the legislation of the country of employment, in respect of the period during which he had to interrupt his employment in order to fulfil his obligations for military service in his country of origin’.
               In its judgment the Court first stated that the Community rules relating to matters of social security are based on the principle that the law of each Member State must ensure that nationals of other Member States employed within its territory receive all the benefits which it grants to its own nationals. It went on to hold that a national law which is intended to protect a worker who resumes his employment with his former employer from any disadvantages occasioned by his absence on military service falls within the context of conditions of work and employment. Such a law cannot therefore, on the basis of its indirect connexion with national defence, be excluded from the ambit of Article 7 of Regulation No 1612/68.
               In Casagrande (
                     8
                  ) the Court was asked to decide whether the restriction of the payment of educational grants under the Bayrisches Ausbildungsförderungsgesetz/Bavarian law on educational grants/to German nationals, stateless persons and aliens granted asylum was compatible with Community law. In its judgment of 3 July 1974 the Court held inter alia that although educational and training policy is not as such included in the spheres which the Treaty has entrusted to the Community institutions, it does not follow that the exercise of powers transferred to the Community is in some way limited if it is of such a nature as to affect the measures taken in the execution of a policy such as that of education and training. As regards Article 12 of Regulation No 1612/68, although the determination of the conditions referred to there is a matter for the authorities competent under national law, they must however be applied without discrimination between the children of national workers and those of workers who are nationals of another Member State who reside in the territory.
               The Cristini judgment of 30 September 1975 (
                     9
                  ) contains very far-reaching remarks on Article 7 of Regulation No 1612/68. The proceedings in the national court concerned the question whether the Société Nationale des Chemins de Fer Franßais could refuse an Italian national whose husband, also Italian, had worked in France and had died there as the result of an industrial accident the right to a reduction card for large families.
               In that judgment the Court said this with regard to Article 7 (2) of Regulation No 1612/68:
               ‘Although it is true that certain provisions in this article refer to relationships deriving from the contract of employment, there are others, such as those concerning reinstatement and reemployment should a worker become unemployed, which have nothing to do with such relationships and even imply the termination of a previous employment.’
               In those circumstances the reference to ‘social advantages’ in Article 7 (2) could not be interpreted restrictively.
               In the Reina case (
                     10
                  ) the Court had to decide whether the concept of ‘social advantage’ included interest free loans granted on childbirth by a credit institution incorporated under public law, on the basis of guidelines and with financial assistance from the State, for families with a low income with a view to stimulating the birth rate. In its judgment of 14 January 1982 the Court first referred to its earlier judgment in Even (
                     11
                  ) in which it had held that it followed from the provisions referred to and from the objective pursued ‘that the advantages which that regulation extends to workers who are nationals of other Member States are all those which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community’. (
                     12
                  )
               The Court went on to state that since the Community has no powers in the field of demographic policy as such, the Member States are permitted, in principle, to pursue the objectives of such a policy by means inter alia of social measures. That does not mean, however, that the Community automatically exceeds the limits of its jurisdiction whenever the exercise of its jurisdiction affects measures adopted in pursuance of that policy. Accordingly, childbirth loans of that kind may not be considered as falling outside the scope of Community law relating to the free movement of persons and, more specifically, of Article 7 (2) of Regulation No 1612/68 solely because they are granted for reasons of demographic policy.
               
               What are the implications of those judgments for the interpretation of Article 7 (2) of Regulation No 1612/68?
               In accordance with the preamble to Regulation No 1612/68 the Court has interpreted broadly the requirement of equal treatment laid down in Article 7 (2). The basis of the equal treatment requirement is indeed the fact that the person concerned is a worker, but it is not restricted to matters concerning the employment relationship. It thus extends to advantages which are granted ‘by virtue of the mere fact of ... residence on the national territory’ and applies to provisions which ‘have nothing to do with ... relationships [deriving from the contract of employment]’. In view of the attitude which the Court has taken in this respect it cannot be assumed that advantages (in this case, the use of languages in the courts) are inapplicable merely because they are granted in order to protect minority rights. The requirement of equal treatment applies to all Obstacles to mobility of workers'. Article 7 (2) of Regulation No 1612/68 must therefore be interpreted broadly. The requirement of equal treatment laid down in that article applies in areas which are not primarily governed by Community law but on which Community law may have indirect effects.
               The first conclusion to be drawn from the judgments cited must therefore be that the possible application of Article 7 (2) cannot be dismissed with the simple statement that matters concerning the organization of the courts or the use of languages in criminal proceedings are not governed by Community law. In so far as such legislation may affect the legal status of a worker from another Member State it must also be assessed in the light of Article 7 (2) of Regulation No 1612/68.
               In this regard the Commission has correctly pointed out that it is not to be excluded that German-speaking workers move to the German-speaking region of eastern Belgium for the very reason that in that region they can use the German language in their daily lives. That is true not only with regard to the actual work place but also with regard to relations with other inhabitants of the area and with the administration; indeed, in the case now before the Court the contacts between the accused and the Belgian Gendarmerie took place in German. It would be inconsistent and incompatible with the principle that workers from other Member States must be treated in the same manner as national workers if he were suddenly to find that in criminal proceedings he could no longer use the language which he can use in everyday life and in which workers who are Belgian nationals may, if they wish, be tried.
               At this point let me give two examples which may make the language situation somewhat clearer.
               Let us consider first the situation of a French-speaking worker on trial before the Tribunal de Police in Eupen or St. Vith. Although proceedings in those courts normally take place in German, under Article 17 (1) of the Belgian law he may, regardless of his nationality, demand to be tried in French.
               Let us take a second example only slightly different from the actual case before the Court. Suppose that an Italian national is born in the German-speaking region of Belgium and grows up to be bilingual. Within the circle of his family Italian is spoken but in everyday life, at school, with his friends and in his training he speaks German. If by misfortune that Italian national should find himself on trial before the Tribunal Correctionnnel, Verviers, must he be denied the use of a language in which he has grown up and the use of which is permitted to Belgian nationals who find themselves in the same situation? A clearer case of discrimination on the basis of nationality is hard to imagine.
               Such a result indeed seems to me to be contradictory; as the Commission pointed out at the end of its oral argument, it is certainly not in keeping with the establishment of a ‘Citizens' Europe’. Nor does it contribute to the integration of the worker in the host country, in particular in the linguistic region in which he lives.
               More to the point, such a result would also be incompatible with Community law, as it results from the intent of the Treaty, Regulation No 1612/68 and the case-law of the Court of Justice.
               Permit me, in closing, to speak briefly of the Belgian Law of 15 June 1935. That law concerns three languages: Dutch, French and German. Expressions such as national language, native language, linguistic minority and so on are not to be found in it. I therefore do not consider it correct, in replying to the question referred by the Cour d'Appel, Liège, to rely on general principles of law regarding the protection of linguistic minorities, as was done by one government during the proceedings in this case before the Court.
               Nor can I agree with the view that it is sufficient to place an interpreter at the disposal of the accused, as is required by the European Convention on Human Rights. In the area of fundamental rights the Court has certainly drawn guidelines from the Convention, in the sense that it has treated the Convention as supplying common minimum standards. (
                     13
                  )
               It is not contrary to the European Convention on Human Rights for Community law to grant more extensive protection to individual rights. Indeed, the Court has held that Community law takes precedence over other agreements concluded within the framework of the Council of Europe in so far as it is more favourable for individuals. (
                     14
                  )
               In order to summarize clearly the obligations for the Member States concerned which result from my view of the law, let me add that there is no question of requiring the Member State to permit the use of other languages in addition to those already available. In this case the question is whether a worker from another Member State can rely on a legal provision regarding language use which exists in the Member State concerned and is available to its own nationals. Finally, I can see no reason why the proceedings before the Tribunal de Première Instance, Verviers, should take place in French with the assistance of an interpreter, when that court was ready to try the accused in German. The proceedings would only become more complicated and more expensive, and the accused would be denied rights to which he is entitled under Community law.
            
         
               C 
            
            
               I therefore propose that the Court give the following answer to the question referred by the Cour d'Appel, Liège :
               The principle of freedom of movement for workers laid down in Article 48 of the EEC Treaty and implemented in particular by Regulation No 1612/68 requires that a German-speaking worker who is a national of another Member State and lives in a German-speaking municipality in Belgium is entitled, to the same extent as a Belgian national in a comparable situation, to require that criminal proceedings against him take place in German.
            
         (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 11 April 1973 in Case 76/72, Michel S. v Fonds National de Reclassement Social des Handicapés, [1973] ECR 457
      
      (
            2
         )	Judgment of 21 March 1985 in Case 172/84, Celestri v Amministrazione delle Finanze dello Stato, [1985] ECR 966.
      (
            3
         )	Judgment of 6 June 1985 in Case 157/84, Fascogna v Caisse des Depôts et Consignations [1985] ECR 1744.
      (
            4
         )	Judgment of 7 February 1979 in Case 115/78, Knoors v Secretary of State for Economic Affairs [1979] ECR 399 at p. 409.
      (
            5
         )	Judgment of 4 April 1974 in Case 167/73, Commission v French Republic, [1974] ECR 359. Judgment of 13 July 1983 in Case 152/82, Forcheri v Belgium [1983] ECR 2323.
      (
            6
         )	Judgment of 17 December 1980 in Case 149/79, Commission v Belgium [1980] ECR 3881.
      (
            7
         )	Judgment of 15 October 1969 in Case 15/69, Südmilch v Ugliola, [1969] ECR 363.
      (
            8
         )	Judgment of 3 July 1974 in Case 9/74, Casagrande v Landeshauptstadt München, [1974] ECR 773.
      (
            9
         )	Judgment of 30 September 1975 in Case 32/75, Cristini v SNCF, [1975] ECR 1085.
      (
            10
         )	Judgment of 14 January 1982 in Case 65/81, Reina v Landeskreditbank Baden-Württemberg, [1982] ECR 33.
      (
            11
         )	Judgment of 31 May 1979 in Case 207/78, Ministère public v Even, [1979] ECR 2019.
      (
            12
         )	In its judgment of 12 July 1984 in Case 261/83 (Castelli v ONTPS, [1984] ECR 3199) the Court referred to that as a well-established principle.
      (
            13
         )	Judgment of 13 May 1974 in Case 4/73, Nold v Commission, [1974] ECR 491. Judgment of 27 October 1976 in Case 130/75, Prais v Council [1976] ECR 1589. Judgment of 13 December 1979 in Case 44/79, Hauer v Land Rheinland-Pfalz, [1979] ECR 3727.
      (
            14
         )	Judgment of 28 May 1974 in Case 187/73, Callemeyn v Belgium, [1974] ECR 553. See also the Opinion of Mr Advocate General Lenz in Case 157/84, Frascogna v Caisse des Depôts et Consignations, [1985] ECR 1740.