5.10. Language – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under EU law, the ground of language does not feature, of itself, as a separate protected ground under the non-discrimination directives. Nevertheless, it may be protected under the Racial Equality Directive in so far as it can be linked to race or ethnicity. It has also been protected via the ground of nationality by the CJEU in the context of the law relating to free movement of persons.[611] The CJEU stressed on many occasions that the provisions of the TFEU relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union; these provisions preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State.[612]

Example: In European Commission v. Belgium,[613] the CJEU examined linguistic requirements for candidates applying for posts in the local services established in the French-speaking or German-speaking regions.

According to the relevant law, persons, whose diplomas or certificates do not show that they were educated in the language concerned, were obliged to obtain a certificate issued only by one particular Belgian body following an examination conducted by that body. The CJEU found it legitimate to require candidates to have knowledge of the language of the region in which that municipality is located to be able to communicate with the authorities and public. However, making the certificate the only way in which those persons could prove their linguistic knowledge was disproportionate to the aim pursued. The CJEU concluded that Belgium failed to fulfil its obligations under Article 45 of the TFEU and Regulation No. 492/2011.

Under CoE law, the ground of language is mentioned in the Article 14 of the ECHR and Article 1 Protocol No.12. Furthermore, both the Council of Europe Framework Convention for the Protection of National Minorities 1995[614] (ratified by 39 CoE member states), and the European Charter for Regional or Minority Languages 1992[615] (ratified by 24 CoE member states), impose specific duties on states relating to the use of minority languages. However, neither instrument defines the meaning of ‘language’. Article 6 (3) of the ECHR explicitly provides, in the context of the criminal process, that everyone enjoys the right to have accusations against them communicated in a language which they understand, as well as the right to an interpreter where they cannot understand or speak the language used in court.

The principle case before the ECtHR involving language relates to the context of education.

Example: In the Belgium Linguistic case,[616] a collection of parents complained that national law relating to the provision of education was discriminatory on the basis of language. In view of the French speaking and Dutch speaking communities in Belgium, national law stipulated that state provided or subsidised education would be offered in either French or Dutch, depending on whether the region was considered French or Dutch. Parents of French- speaking children living in the Dutch-speaking region complained that this prevented, or made it considerably harder, for their children to be educated in French. The ECtHR found that while there was a difference in treatment, this was justified. The decision was based around the consideration that regions were predominantly unilingual. The difference in treatment was therefore justified, since it would not be viable to make teaching available in both languages. Furthermore, families were not prohibited from making use of private education in French in Dutch-speaking regions.

In Catan and Others v. the Republic of Moldova and Russia,[617] (discussed in Section 2.4.2) the ECtHR reiterated that there was a right to receive education in a national language.

In a series of cases related to the rules for spelling of names, the ECtHR referred to the wide margin of appreciation that the member states enjoyed, and found that the relevant policy did not violate Article 14. The reasons given were that the policy did not deprive an individual of choice as to how their names should appear[618] nor was there any legal obstacle to choosing a Kurdish forename or surname, provided that they were spelt in accordance with the rules of the Turkish alphabet.[619]

Example: In Macalin Moxamed Sed Dahir v. Switzerland,[620] the applicant’s request to change her surname on the grounds that the Swiss pronunciation of the name had an offensive meaning in her mother tongue was refused. The ECtHR held that she was not in a comparable situation to that of persons whose names had a ridiculous or humiliating meaning in a more common language such as a national language. Her situation was also not comparable to that of Polish migrants who had been authorised to change their names because they could not be pronounced by Swiss people. In conclusion, the ECtHR found the complaint manifestly ill founded.[621]

Example: A case from Austria[622] concerned a job advertisement which required applicants to have German as their ‘mother tongue’. The court held that a certain degree of language knowledge was necessary for a position as a graphic designer, but the requirement to speak German as a mother tongue constituted indirect discrimination on grounds of ethnic origin.

Example: In a case[623] from the United Kingdom, the instruction to a non-native English speaker not to speak her native language at work was justified. The national courts found that the treatment of the claimant was not connected with her nationality. They accepted that the reason for the instruction given to her was because of the reasonable suspicions (based on her behaviour) that she might be an animal rights activist wanting to infiltrate the company, which was involved in testing products on animals. Therefore, for security reasons, it was important that English-speaking managers could understand their staff in the workplace.

For further elucidation as to how the protected ground of language operates in practice, it is possible to draw on a case decided by the UN Human Rights Committee (HRC), responsible for interpreting and monitoring compliance with the International Covenant on Civil and Political Rights (which all EU Member States have joined).

Example: In Diergaardt v. Namibia,[624] the applicants belonged to a minority group of European descent, which had formerly enjoyed political autonomy and now fell within the state of Namibia. The language used by this community was Afrikaans. The applicants complained that during court proceedings they were obliged to use English rather than their mother tongue. They also complained of a state policy to refuse to respond in Afrikaans to any written or oral communications from the applicants, even though they had the ability to do so. The HRC found that there had been no violation of the right to a fair trial, since the applicants could not show that they were negatively affected by the use of English during court proceedings. This would suggest that the right to an interpreter during a trial does not extend to situation where the language is simply not the mother tongue of the alleged victim. Rather it must be the case that the victim is not sufficiently able to understand or communicate in that language. The HRC also found that the state’s official policy of refusing to communicate in a language other than the official language (English) constituted a violation of the right to equality before the law on the basis of language. While the state may choose its official language, it must allow officials to respond in other languages where they are able to do so.

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611. CJEU, Case 379/87, Anita Groener v. Minister for Education and the City of Dublin Vocational Educational Committee, 28 November 1989.

612. CJEU, C-202/11, Anton Las v. PSA Antwerp NV [GC], 16 April 2013, para. 19; CJEU, C-461/11, Ulf Kazimierz Radziejewski v. Kronofogdemyndigheten i Stockholm, 8 November 2012, para. 29.

613. CJEU, C-317/14, European Commission v. Kingdom of Belgium, 5 February 2015.

614. Council of Europe, Framework Convention for the Protection of National Minorities, CETS No. 157, 1995.

615. Council of Europe, European Charter for Regional or Minority Languages, CETS No. 148, 1995.

616. ECtHR, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v. Belgium, No. 1474/62 and others, 23 July 1968.

617. ECtHR, Catan and Others v. the Republic of Moldova and Russia [GC], Nos. 43370/04, 18454/06 and 8252/05, 19 October 2012.

618. ECtHR, Bulgakov v. Ukraine, No. 59894/00, 11 September 2007, para. 58.

619. ECtHR, Kemal Taşkın and Others v. Turkey, Nos. 30206/04 and others, 2 February 2010.

620. ECtHR, Macalin Moxamed Sed Dahir v. Switzerland (dec.), No. 12209/10, 15 September 2015.

621. Compare also CJEU, C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and Others, 12 May 2011, discussed in Section 4.6.

622. Austria, Regional administrative court in Tirol, LVwG-2013/23/3455-2, 14 January 2014.

623. United Kingdom, Employment Appeal Tribunal, Kelly v. Covance Laboratories Limited, UKEAT/0186/15/LA, 20 October 2015.

624. HRC, Diergaardt and Others v. Namibia, Communication No. 760/1997, 6 September 2000.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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