Of One Member State and Habitually Resides in Another Member State Be
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OPINION OF MR LENZ — CASE 137/84 of one Member State and habitually language other than the language resides in another Member State be normally used in proceedings before the entitled, under the same conditions as a court which tries him. Such an worker who is a national of the host entitlement falls within the meaning of Member State, to require that criminal the term 'social advantage' as used in proceedings against him take place in a Article 7 (2) of that regulation. OPINION OF MR ADVOCATE GENERAL LENZ delivered on 28 March 1985 * Mr President, trial was served on the accused in French Members of the Court, but with a German translation. Since the accused did not appear at his trial, A. (1) The reference for a preliminary ruling on 2 November 1982 the Tribunal de with which this opinion is concerned, made Première Instance [Court of First Instance], by the Cour d'Appel [Court of Appeal], Verviers, found him guilty in absentia and Liège, in connection with criminal ordered him to pay a fine. The accused proceedings, is based on the following applied to have that judgment set aside and circumstances : at the same time requested that the proceedings should take place in German. By judgment of 23 November 1982 the Tribunal de Première Instance, Verviers, in On 27 August 1981 an inhabitant of a criminal session, German-speaking municipality in eastern .Belgium clashed with members of the Belgian Gendarmerie after an extended granted the application and ordered that the 'pub-crawl'. In the course of the dispute proceedings continue in German; they came to blows. The questioning of the person subsequently charged by the Belgian the decision on costs was reserved. Gendarmerie (Eupen District, St. Vith Brigade) was carried out in the German language, since he wished to make his The Public Prosecutor's Office appealed statement in German. The records and against that judgment to the Cour d'Appel, forms of the Gendarmerie were also Liège. It took the view that the decision to completed in German. Only information continue the proceedings in German was from the central criminal records office is contrary to law, on the ground that the included in French in a personal file drawn accused is not Belgian and therefore has no up in German. The summons to appear for right to be tried in German. * Translated from the German. 2682 MINISTÈRE PUBLIC v MUTSCH At this point I think it is necessary to language; he has therefore requested provide some additional information pursuant to the second paragraph of Article regarding the accused and the Belgian 16 and the third paragraph of Article 17 of legislation on the use of languages in the the Law of 1935 that the proceedings take courts. place in German. According to those provisions, however, only Belgian nationals The accused was born in 1957 in Thommen, have the right to require that proceedings a village in the municipality of Burg before the court in question take place in Reuland in the German-speaking region of German. eastern Belgium. According to an attestation of the municipal administration of Burg Reuland dated 28 January 1981 he has Since, however, the Cour d'Appel, Liège, resided in that municipality since his birth, was in some doubt whether the restriction or at least resided there until 1981. The of that right to Belgian nationals was accused works as a roofer. compatible with Community law, by judgment of 26 April 1984 it referred the Article 17 of the Belgian Law of 15 June following question to the Court for a 1935 on the use of languages in the courts preliminary ruling: provides as follows: 'Proceedings in the Tribunaux de Police 'Does the third paragraph of Article 17 of [local criminal courts] of Eupen and St. Vith the Law of 15 June 1935 on the use of shall take place in German unless the languages in the courts, which allows an accused requests in accordance with Article accused person of Belgian nationality who 16 that they take place in French. resides in a German-speaking municipality situated within the territorial jurisdiction of Proceedings in the Tribunaux de Police of the Tribunal Correctionnel, Verviers, to Malmédy, Aubel and Limbourg shall take require that the proceedings take place in place in French unless an accused person of German, comply with the principles Belgian nationality requests in accordance referrred to in Article 220 of the Treaty, with Article 16 that they take place in which is intended to secure the protection German. of persons and the enjoyment and protection of rights under the same conditions as those accorded by each Where an accused person of Belgian Member State to its own nationals, that is to nationality resides in a German-speaking say, in the case in point, is it or is it not municipality within the jurisdiction of the necessary, in a criminal case, to grant to a Tribunal Correctionnel [criminal court], German-speaking EEC national, and in Verviers, and so requests in accordance with particular, as in the present case, a Lu Article 16, the proceedings before that xembourg national residing in St. Vith, a court... shall take place in German'. German-speaking municipality, the right to require that the proceedings take place in As the Cour d'Appel, Liège, stated in its German?' judgment of 23 November 1982, it is established that the accused is of Lu xembourg nationality and now resides in St. Vith, a German speaking municipality (2) The Italian Government, the Com within the jurisdiction of the Tribunal mission of the European Communities and Correctionnnel, Verviers. The accused the accused in the main proceedings have maintains that he speaks only German, or at submitted observations on that reference for least expresses himself more easily in that a preliminary ruling. 2683 OPINION OF MR LENZ — CASE 137/84 The Italian Government has submitted that Community law which must be taken into national legislation for the benefit of account in interpreting Article 17. The language minorities normally applies only to provisions regarding the free movement of members of the minority in question and to workers and the right of establishment may the area where the language is spoken. A be relevant. The same principles apply to member of a recognized language minority both those areas. can not therefore require the use of his language in legal proceedings outside the area where his language is spoken. Nor can On the basis of a detailed analysis of the a national of another Member State require judgments of the Court regarding the free that the minority language be used on the movement of workers, and in particular the grounds that he speaks the minority term 'social advantage' as contained in language (which is not the national Article 7 (2) of Regulation No 1612/68 on language of the State in which he lives) and freedom of movement for workers, the lives in the area where the minority Commission comes to the conclusion that language is spoken. In such proceedings the legal status of the accused in the main interpreters must be used. proceedings as a worker from another Member State gives him the right to require that he be tried in German. That result is compatible with the European Convention on Human Rights, since it provides adequate guarantees of equal The accused in the main proceedings has treatment and the protection of the rights of adopted the Commission's submission. the defence. It is also in conformity with Article 220 of the EEC Treaty, since foreigners are given the same rights as B. My position on this reference for a nationals who are not members of the preliminary ruling is as follows. linguistic minority and thus have no right to be tried in the minority language. The Cour d'Appel, Liège, wishes to know whether the accused has a right to be tried In conclusion the Italian Government in German on the basis of Article 220 of the proposes that the question referred by the EEC Treaty. Cour d'Appel, Liège, be answered in the negative. Article 220 of the EEC Treaty provides that: The Commission points out first that as the question stands the answer can only be that a Member State is not obliged to grant the 'Member States shall, so far as is necessary, nationals of other Member States the rights enter into negotiations with each other with referred to in Article 220 of the EEC Treaty a view to securing for the benefit of their so long as the Member States have not nationals: entered into an agreement as referred to in that article. the protection of persons and the enjoyment and protection of rights under the same Since the national court wishes, however, to conditions as those accorded by each State obtain an answer permitting it to rule on the to its own nationals; ...' compatibility with Community law in general of Article 17 of the Law of 1935, the question must be rephrased to ask That provision of the Treaty is intended to whether there are any provisions of ensure, in so far as is necessary, that in each 2684 MINISTÈRE PUBLIC v MUTSCH Member State of the Community nationals of such provision. The Court acted in a of other Member States are treated in the similar manner in its judgment of 21 March same way as nationals of that Member 1985 in the Celestri case 2 in which it State. The right granted to nationals to use referred the national court to the relevant a particular language in the courts could provision, and I made a similar proposal to certainly fall under that provision of the the Court last week in my opinion in the EEC Treaty.