Language barriers to the free movement in the EU: what is done and what remains to be done? Stefaan van der Jeught

Language barriers to the free movement in the EU: what is done and what remains to be done? Stefaan van der Jeught

Setting the scene Freedom of movement for workers, professionals, students, long-term residents One internal market The protection of linguistic diversity in the EU Political sensitivities linked to migration and social cohesion policies (through language acquisition)

Structure Linguistic proficiency requirements for employment Recognition of diplomas and qualifications Certified translations of documents Language integration schemes Conclusions

Linguistic proficiency requirements for employment

Linguistic proficiency requirements for employment Private employment Public employment Has the Member State regulated language requirements? Is specific language proficiency requested by the private employer?

Public employment Linguistic requirements in public service are not covered by EU legislation. Yet, as a result of case law of the Court of Justice, the concept of public service employment has been narrowed down to those offices exercising State authority, such as the police and the justice department. Consequently, Member State powers are not unlimited regarding language requirements for jobs in the public sector, such as those involving public health care, transport or education.

Private employment: language regulation Public regulation of private employment relations: typical example: private universities, schools/kindergartens. EU law allows Member States to impose conditions relating to linguistic knowledge required by reason of the nature of the post to be filled. Yet, there is a presumption of an indirect discrimination: such rules or practices may not have as an aim or effect to exclude nationals of other EU Member States. See Regulation 492/2011 on freedom of movement for workers within the Union.

The Groener case (1989) Court of Justice upheld the condition of proficiency in Irish for a post in public education in Ireland. Carte blanche for Member States? Not really: degree of uncertainty - language proficiency criteria are always subject to a proportionality scrutiny from national or EU courts. European Commission criticized language laws during the accession screening of candidate EU Member States (for instance, Slovenia had to change provisions concerning the compulsory use of the Slovenian language inside companies).

Proof of language proficiency In the Angonese judgment (2000) the Court held that requiring a specific national certificate, without allowing a candidate to prove language knowledge by equivalent qualifications obtained in other EU Member States, is disproportionate. Recently confirmed in the Belgian SELOR case (2015): the fact that no other certificates were accepted as proof of language knowledge was incompatible with the free movement of workers.

Private employment: employer imposes language requirements Not explicitly dealt with by EU law. Yet, what of, for instance, the native speaker requirement in job advertisements? This could very well constitute a form of indirect discrimination: the European Commission holds the view that an employer may not require that a specific language be the native tongue of an employee. Uncharted waters: degree of uncertainty.

Recognition of diplomas and qualifications

Professional qualifications This concerns, for instance, nurses, dental practitioners, veterinary surgeons, midwives, architects, pharmacists and medical doctors. If these professionals want to work in another EU Member State, they must have a knowledge of languages necessary for practising the profession in the host EU Member State (Professional Qualifications Directive, 2005/36). But what is a necessary level? And how may the host EU Member State assess language proficiency of foreign professionals? The Professional Qualifications Directive (2005) remained silent on this issue.

Assessment of language skills The issue became acutely controversial, particularly as to health professionals working in direct contact with patients. In 2013, the Professional Qualifications Directive was amended. Language tests are only allowed: in case of patient safety implications. when there is a serious and concrete doubt about language proficiency. Furthermore language tests may be carried out only after the recognition procedure is finished and must be proportionate.

Assessment of language skills A language test must be limited to one official or administrative language of the host Member State (provided furthermore that it is also an EU official language). This rules out, for instance, Spain s co-official languages and Luxembourgish. It is not clear whether the host EU Member State may impose a test of the local language or whether the applicant may freely choose one of the official languages of the host EU Member State (see the case of Belgium). Specific issues for multilingual Member States (or regions) (see Italy, Luxembourg, Belgium).

Certified translations of documents

Certified translations of documents Clearly, taking up an activity in another EU Member State invariably entails a series of administrative procedures, which are not facilitated by language barriers. In many EU Member States, it was standard practice to require certified copies in the official language of the State.

Diplomas? The Professional Qualifications Directive remains silent on the issue of translation of documents such as diplomas and supplements and certificates of nationality. The Court of Justice has held that EU Member States may not make disproportionate requests for translation of documents to be submitted in view of recognition (Commission/Italy, 2002). In addition, in 2009, the Commission drew up a non-binding Code of Conduct stipulating that certified translations of standard documents such as identity cards or passports may not be required. In practice, some EU Member States also accept documents drawn up in English.

Cooperation between administrations Tools enabling national administrations to communicate and exchange documents should make certified translations and copies to some extent unnecessary. European Professional Card and Internal Market Information System.

Language testing for migrants

No linguistic obligation for EU citizens in another Member State The EU freedom of movement precludes any obligatory language integration scheme for EU nationals. It would seem that Turkish nationals are also exempt from any obligatory language courses or tests, following the Dogan judgment of the Court of Justice (2014). The scope of this judgment is not entirely clear though. In principle, other non-eu nationals may still be required under national law to attend language courses and/or take a test in view of obtaining residence permits.

Long-term residents Language integration schemes may also apply to long-term residents (see Directive 2003/109). Recent case law of the Court of Justice (P and S, 2015): language tests may not be disproportionate. Following elements must be taken into account: (I) the accessibility of courses and material; (II) the fees and (III) the consideration of specific individual circumstances, such as age, illiteracy or level of education. The status of long-term resident may not be lost as a consequence of (failed) language testing.

Long-term residents Language proficiency testing is in any case excluded for those long-term third-country nationals who have already been subject to integration conditions in the first EU Member State they resided in. In such a case, the persons concerned may only be required to attend language courses. Reportedly, some EU Member States, do, nevertheless, require long-term residents to pass an integration test also in the latter scenario.

What remains to be done?

More legal certainty is needed Language issues in the internal market often remain under the radar or are ignored due to political sensitivity of the issue. Consequently, there are still quite some uncharted waters. This legal uncertainty may lead to a negative perception of the important achievements of the EU as to mobility of workers and professionals. Language rights and obligations should therefore be clarified.

Striking a right balance A right balance must be struck between the free movement, on the one hand, and the protection of language diversity in the Member States on the other. Emphasis in EU communication is on the free movement, largely ignoring language issues Yet, language acquisition is essential for the integration of newcomers in an inclusive society.

Striking a right balance More emphasis in EU communication on linguistic aspects and importance of (local) language acquisition. EU benchmarks for free language courses in Member States? Language integration schemes or tests, when proportionate, should not necessarily be perceived as negative. For instance, setting clear proficiency requirements based on the Common European Framework of Reference for Languages.

Striking a right balance Likewise, more pragmatism, acknowledging the role of English as a lingua franca, especially in first contacts with newcomers. Language skills/availability of info in national administrations? Summing up, a more positive, transparent and daring approach to the language issue is needed.