Article 67 of the Treaty on the Functioning of the European Union (TFEU) provides that the Union respects different traditions. This respect has led European member States to enact statutes providing for the mandatory use of national languages (I). However, these national statutes may be challenged by European rules (II).
I. The mandatory use of national languages imposed by the European member States
European member States impose the use of national languages to facilitate understanding between parties to commercial contracts (A), protect employees (B) and consumers (C). A. The mandatory use of national languages for commercial contracts
1. In Spain according to article 3-1 of the Spanish Constitution, Spanish is the official language. However, article 3-2 recognizes each regional language of the autonomous communities as official. Commercial contracts can be written both in Spanish or in a regional language. Article 15 of the language policy's law of Catalonia states that using a mandatory language in private documents is not a formal requirement allowing for the use of any language. However, drafting commercial contracts have to be done in one of the two official languages. 2. In France In France, the law of the 4th of August 1994, referred to as the Toubon Law establishes a different standard for public and private entities.
a. Public entities have a general obligation to use French when addressing users. The French Constitutional Court ruled that when providing a public service, it is mandatory to use French. According to Article 5 of the Toubon Law, all contracts concluded by a legal person under public law must be written in French, except for the contracts involving foreign co-contractors. These contracts must have a French version in conjunction with copies in various other languages. These other copies are also legally binding. b. The Toubon law subjects private entities to less stringent rules. However, in the French civil code, we find rules on private entities and use of language. For instance, article 1127-1 of the French Civil Code states that when contracting by electronic means "The language offered for the conclusion of contract, which must include the French language". More specifically, the article L224-76 of the French Consumer Code provides that the professionals must disclose information to consumers in their national language. The Toubon Law does not apply to international business contracts. The principle is that the parties may choose the language in which the contract is written.
B. The mandatory use of national languages for labor contracts In France, a protective regime exists to ensure that workers have a full understanding of their contractual obligations. For instance, article L. 1221-3 of the French Labor Code provides for the drafting in French of labor contracts, and grants the possibility for foreign employees to obtain a contract that has been translated to their national language. To the same end, article L. 1321-6 of the French Labor Code states that all documents needed to perform the contract should be in French. The French Court of Cassation ruled, on the ground of article L. 1321-6 of the French Labor Code, that all the documents containing employee's obligations that are necessary to perform the contract should be written in French. According to this decision, employee wage agreements not written in the proper national language are not enforceable against employees, even if the employee speaks the aforementioned language while performing its labor contract. This rule is applicable even though the employee is performing his work in a foreign language, in the instant case, in English. C. The mandatory use of national languages in advertising In France, articles 2, 3 and 4 of the Toubon Law provide for the use of French for the commercialization of goods and products available to consumers. These articles serve to protect the consumer by insuring a specific protection in regards to insurance contract, guarantee, invoices and financial services. The Court of Appeal of Paris ruled that legislation stating that only Spanish could be used for "heat gun" instructions infringed on Toubon Law. The latter was found to be a law of public order to be respected according to article 1st of the decree that penalizes the infraction of the Toubon Law of a fourth-class offence's fine. The French system provides for protective provisions when consumers are involved. As a consequence, in regards to online advertising, publications must be written in French; an exception being for foreign websites fully written in a foreign language. In more recent events, the French 2024 Olympic bid committee is facing legal action because of their promoted slogan: "Made for Sharing". The allegation is made that the slogan violates the laws put in place to protect the French language. The French 2024 Olympic bid committee is defending the slogan by stating that the audience of the slogan is the international market.
II. The mandatory use of national languages challenged within the European member States
C. The mandatory use of national languages may affect consumer rights
A case rendered by the CJEU demonstrates the specific protection of consumers. A royal Belgian decree provided for a mandatory use of Flemish for documents geared toward consumers. Mineral water companies imported and distributed various kinds of French and German mineral water in Belgium. The bottles were tagged in French and German and commercialized in the Flemish region. Reference was made to the CJEU to determine whether this decree requiring the labeling of the bottle in Flemish constituted an obstacle for consumers' rights. The CJEU ruled that the national obligation was more restrictive than the European directive whose article 14 provide for "language easily understandable" whereas the Belgian legislation aimed at imposing a language: Flemish. The CJEU ruled that when national laws create an obligation upon member States to prohibit products from their commercialization, it is required that the tagging is done in a "language easily understandable" by the consumer. Member States cannot impose an exclusive language or at least one language: it is contrary to the European directive, which already grants consumers adequate protection. In a case rendered in 1999, the CJEU ruled that member States can compel specific mentions in the language of the place of commercialization or in a language that is easy to understand. Indeed, other considerations must be taken into account such as the prohibition of misleading information on the tagging.
The use of national language does not only apply to contractual documents but also to judicial ones. The European regulation regarding judicial and extrajudicial documents in civil or commercial matters, conditions the validity of the notification to the translation of the language spoken by the addressee or the place of notification. However, according to the CJEU's ruling, a regularization can be provided to overcome this mandatory language obstacle.
SPAIN B. Joan I Mari, "The cornerstones of language policy in Catalonia" FRANCE The application circular of the Toubon Law M.-V. Arras, "The language in international contracts" J.-M. Coblence and J.-P. Sala-Martin, "Communication commerciale et publicitÃ© sur Internet" EUROPE D. Hanf, K. Malacek, E. Muir, "Langues et construction EuropÃ©enne", Cahiers du CollÃ¨ge d'Europe nÂ°10, P.I.E PETER LANG S.A.