Discriminating between employees or prospective employees on the basis of nationality as regards access to employment, remuneration and other conditions of work is illegal in terms of EU law. Such discrimination may take various forms and could be both direct and indirect.

One way in which employers could go about discerning between prospective employees is by imposing the necessity of knowledge of a particular language, which persons other than nationals of the place of employment could find hard to fulfil.

The issue as to whether such a requisite could amount to a form of indirect indiscrimination on the basis of nationality has often arisen before the Court of Justice of the European Union. The latter Court has affirmed that it is legal for employers to require a certain level of knowledge of a particular language when employing a person and may even request a diploma to prove such knowledge. What is important is that applicants for a job are left free to prove the required linguistic knowledge by any means and in particular even by qualifications obtained in other member states and not indiscriminately through the attainment of one particular qualification.

Indeed, the Court of Justice has pronounced itself on this matter in cases involving not only public authorities but even private undertakings. In one particular case, an Italian private bank imposed as one of the conditions for entry to a competition for a post with the undertaking, a certificate of bilingualism in Italian and German issued by one local authority. Such a certificate was usually obtained by residents of the province where it was issued as a matter of course for employment purposes. In this particular case, the Court ascertained that the prohibition of discrimination insofar as employment is concerned applies not only to public authorities but also to private undertakings. It then went on to rule that the fact that it was impossible for an applicant to submit any proof of linguistic knowledge other than one particular diploma issued only in one province of a member state is discriminatory, disproportionate to the aim of recruiting properly qualified staff and in breach of the fundamental right of free movement enjoyed by all EU workers.

In view of similar circumstances, the European Commission recently decided to refer Belgium to the EU’s Court of Justice precisely because of alleged discriminatory conditions for candidates wishing to work in the local public sector and who have not followed education in Dutch, French or German.

In such cases, Belgian law provides that candidates’ knowledge of languages is only recognised if they have in their possession a certificate issued by the Belgian governmental recruitment service.

No other certificates are accepted as proof of language knowledge. The Commission is alleging that such a requisite is discriminatory, disproportionate and in breach of the EU’s fundamental principle of free movement of workers.

It will now be up to the Court to decide on the matter in this particular case and to declare whether the relevant Belgian law is illegal or otherwise though one can expect the Court’s ruling to be in line with previous jurisprudence on the matter.

The free movement of workers is a fundamental right enjoyed by all EU citizens besides being an important way for EU member states to address skills gaps and shortages. It therefore comes as no surprise that both the EU Commission and the EU Court strive to do their utmost in eradicating any type of direct or indirect discrimination which impinges upon this right.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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