Anton Las v PSA Antwerp NV.
Date: 2013-04-16
17. It should be pointed out, first of all, that the employment contract at issue in the main proceedings falls within the scope of Article 45 TFEU, since it was concluded between a Netherlands national, resident in the Netherlands, and a company established in the territory of the Kingdom of Belgium.
18. In addition, contrary to what the applicant in the main proceedings claims, Article 45 TFEU may be relied on not only by workers themselves, but also by their employers. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers (see, to that effect, Case C‑208/05 ITC [2007] ECR I‑181, paragraph 23, and Case C‑379/11 Caves Krier Frères  [2012] ECR I‑0000, paragraph 28).
19. As regards the existence of a restriction, it must be pointed out that the provisions laid down in the FEU Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case C‑461/11 Radziejewski [2012] ECR I‑0000, paragraph 29 and the case-law cited).
20. Those provisions and, in particular, Article 45 TFEU thus preclude any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedoms guaranteed by the Treaty (Case C‑379/09 Casteels  [2011] ECR I‑1379, paragraph 22 and the case-law cited).
22. However, such legislation is liable to have a dissuasive effect on non‑Dutch‑speaking employees and employers from other Member States and therefore constitutes a restriction on the freedom of movement for workers.
23. As regards the justification for such a restriction, according to well‑established case-law, national measures capable of hindering the exercise of the fundamental freedoms guaranteed by the Treaty or of making it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 55).
25. As regards the first objective invoked by the Belgian Government, it must be pointed out that the provisions of European Union law do not preclude the adoption of a policy for the protection and promotion of one or more official languages of a Member State (see, to that effect, Case C‑379/87 Groener  [1989] ECR 3967, paragraph 19, and Case C‑391/09 Runevič-Vardyn and Wardyn [2011] ECR I‑3787, paragraph 85).
26. According to the fourth subparagraph of Article 3(3) TEU and Article 22 of the Charter of Fundamental Rights of the European Union, the Union must respect its rich cultural and linguistic diversity. In accordance with Article 4(2) TEU, the Union must also respect the national identity of its Member States, which includes protection of the official language or languages of those States (see, to that effect, Runevič‑Vardyn and Wardyn,  paragraph 86).
27. Accordingly, the objective of promoting and encouraging the use of Dutch, which is one of the official languages of the Kingdom of Belgium, constitutes a legitimate interest which, in principle, justifies a restriction on the obligations imposed by Article 45 TFEU.
28. Concerning the second and third objectives invoked by the Belgian Government and based, respectively, on the social protection of employees and the facilitation of the related administrative controls, the Court has already acknowledged that those objectives are among the overriding reasons in the general interest capable of justifying such restrictions on the exercise of fundamental freedoms recognised in the Treaty (see, to that effect, Case C‑490/04 Commission  v Germany  [2007] ECR I‑6095, paragraphs 70 and 71, and Case C‑515/08 dos Santos Palhota and Others  [2010] ECR I‑9133, paragraph 47 and the case-law cited).
32. Moreover, legislation of a Member State which would not only require the use of the official language of that Member State for cross-border employment contracts, but which also, in addition, 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.