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], , 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 . 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 ( 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.

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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, 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. Frascogna 3 case.

It is therefore necessary to examine whether other provisions of Community law give the The Commission has pointed out that accused a right to be tried in German. It is Member States are not obliged to guarantee possible that such a right flows from his the rights referred to in Article 220 of the legal status as a worker under Article 48 EEC Treaty so long as they have not of the EEC Treaty and Regulation No entered into an agreement to that effect. 1612/68.

Under the EEC Treaty freedom of I do not think it necessary to go further into movement for workers is one of the foun­ that question. The 'necessity' of such dations of the Community. Along with the negotiations can be left open in this case, freedom of establishment and the freedom since the answer to the question posed by to provide services, guaranteed by Articles 3 the Cour d'Appel, Liège, can be found in (c), 48, 52 and 59 of the Treaty, it is one of other provisions of Community law. It is the fundamental liberties of the Community however necessary to rephrase the question, system. 4 First of all, Article 3 (c) states that as the Commission has also proposed. Such the abolition of obstacles to the freedom of reformulation is of course nothing unusual movement for persons is one of the for the Court. In its judgment of 11 April purposes of the Community. Article 48 of 1973 ' the Court stated that in proceedings the Treaty lays out in more detail what under Article 177, although the Court has freedom of movement for workers means. It no jurisdiction to apply the Community rule entails the abolition of any discrimination to a specific case, nor, consequently, to based on nationality between workers of the pronounce on a provision of national law Member States as regards employment, with regard to such rule, it can provide a remuneration and other conditions of work national court with the factors of interpret­ and employment. The Court has never ation depending on Community law which could be useful to it in evaluating the effects

2 — Judgment of 21 March 1985 in Case 172/84, Celestri v Amministrazione delle Finanze dello Stato, [1985] ECR 966. 3 — Judgment of 6 June 1985 in Case 157/84, Faseogna v Caisse des Depôts et Consignations [1985] ECR 1744. 1 — Judgment of 11 April 1973 in Case 76/72, Michel S. v Fonds 4 — Judgment of 7 February 1979 in Case 115/78, Knoors v National de Reclassement Social des Handicapés, [1973] Secretary of State for Economic Affairs [1979] ECR 399 at ECR 457 p. 409.

2685 OPINION OF MR' LENZ — CASE 137/84

interpreted that provision of the Treaty adoption of Regulation No 1612/68 on narrowly. 5 It has even given a restrictive freedom of movement for workers within interpretation to the exception contained in the Community. According to the preamble Article 48 (4) regarding the application of to that regulation freedom of movement that article to employment in the public entails first 'the abolition of any discrimi­ service. It has recognized that exception nation based on nationality between only in the case of employment involving workers of the Member States as regards direct or indirect participation in the employment, remuneration and other exercise of powers designed to safeguard conditions of work and employment... '. the general interest of the State. 6 In the case of such posts the Court has accepted the requirement of 'a special relationship of allegiance to the State and reciprocity of According to the fifth recital in the rights and duties which form the foundation preamble: of the bond of nationality'.

'Whereas the right of freedom of movement, in order that it may be That reasoning may be applied in these exercised, by objective standards, in proceedings. There is a small set of rights freedom and dignity, requires that equality and duties which may be reserved for of treatment shall be ensured in fact and in nationals, since they require the 'special law in respect of all matters relating to the relationship of allegiance' referred to above. actual pursuit. of activities as employed Those rights and duties may be contrasted persons and to eligibility for housing,. and with the range of social rights which must also that obstacles to the mobility of be guaranteed to all workers without workers shall be eliminated, in particular as discrimination. regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country. ' The question in what language criminal proceedings are to take place clearly belongs to that second group. Criminal In Title II of Part I of the regulation, on proceedings certainly do not involve a 'Employment and equality of treatment', 'special relationship of allegiance', so the Article 7 (2) provides as follows: safeguarding of the rights of the defence, which include the choice of the language of the proceedings, cannot be made dependent upon nationality. '[a worker] shall [in the territory of another Member State] enjoy the same social and tax advantages as national workers'.

The duty to enact legislation laid down in Article 49 of the Treaty was fulfilled by the In order to examine whether Article 7 of Regulation No 1612/68 implies the right for

5 — Judgment of 4 April 1974 in Case 167/73, Commission v a German-speaking worker in eastern French Republic, [1974] ECR 359. Judgment of 13 July 1983 Belgium to be tried in German I shall begin in Case 152/82, Forcheri vBelgium [1983] ECR 2323. with a brief discussion of the judgments of 6 — Judgment of 17 December 1980 in Case 149/79, Com• mission v Belgium [1980] ECR 3881. the Court on that provision.

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In the Ugliola case 7 the Court was faced Community law. In its judgment of 3 July with the question whether Article 7 was to 1974 the Court held inter alia that although be interpreted as meaning that 'a worker educational and training policy is not as who is a national of a Member State and such included in the spheres which the who is employed in the territory of another Treaty has entrusted to the Community Member State is entitled to have the period institutions, it does not follow that the of his military service taken into account in exercise of powers transferred to the the calculation of the duration of his service Community is in some way limited if it is of with his employer, in accordance with the such a nature as to affect the measures legislation of the country of employment, in taken in the execution of a policy such as respect of the period during which he had that of education and training. As regards to interrupt his employment in order to Article 12 of Regulation No 1612/68, fulfil his obligations for military service in although the determination of the his country of origin'. conditions referred to there is a matter for the authorities competent under national law, they must however be applied without discrimination between the children of national workers and those of workers who In its judgment the Court first stated that are nationals of another Member State who the Community rules relating to matters of reside in the territory. social security are based on the principle that the law of each Member State must ensure that nationals of other Member States employed within its territory receive all the benefits which it grants to its own The Cristini judgment of 30 September nationals. It went on to hold that a national 1975 9 contains very far-reaching remarks law which is intended to protect a worker on Article 7 of Regulation No 1612/68. The who resumes his employment with his proceedings in the national court concerned former employer from any disadvantages the question whether the Société Nationale occasioned by his absence on military des Chemins de Fer Franßais could refuse service falls within the context of conditions an Italian national whose husband, also of work and employment. Such a law Italian, had worked in France and had died cannot therefore, on the basis of its indirect there as the result of an industrial accident connexion with national defence, be the right to a reduction card for large excluded from the ambit of Article 7 of families. Regulation No 1612/68.

In that judgment the Court said this with In Casagrande 8 the Court was asked to regard to Article 7 (2) of Regulation No decide whether the restriction of the 1612/68: payment of educational grants under the Bayrisches Ausbildungsförderungsgesetz/ Bavarian law on educational grants/ to German nationals, stateless persons and aliens granted asylum was compatible with 'Although it is true that certain provisions in this article refer to relationships deriving from the contract of employment, there are others, such as those concerning 7 — Judgment of 15 October 1969 in Case 15/69, Südmilch v Ugliola, [1969] ECR 363. 8 — Judgment of 3 July 1974 in Case 9/74, Caiagrande v Lunda- 9 — Judgment of 30 September 1975 in Case 32/75, Cristini v bauptstadtMünden, [1974] ECR 773. SNCF, [1975] ECR 1085.

2687 OPINION OF MR LENZ — CASE 137/84

reinstatement and re-employment should a The Court went on to state that since the worker become unemployed, which have Community has no powers in the field of nothing to do with such relationships and demographic policy as such, the Member even imply the termination of a previous States are permitted, in principle, to pursue employment.' the objectives of such a policy by means inter alia of social measures. That does not mean, however, that the Community auto­ matically exceeds the limits of its jurisdiction whenever the exercise of its jurisdiction affects measures adopted in In those circumstances the reference to pursuance of that policy. Accordingly, 'social advantages' in Article 7 (2) could not childbirth loans of that kind may not be be interpreted restrictively. considered as falling outside the scope of Community law relating to the free movement of persons and, more specifically, of Article 7 (2) of Regulation No 1612/68 solely because they are granted for reasons of demographic policy.

In the Reina case 10 the Court had to decide whether the concept of 'social advantage' included interest free loans granted on childbirth by a credit institution incor­ What are the implications of those porated under public law, on the basis of judgments for the interpretation of Article 7 guidelines and with financial assistance from (2) of Regulation No 1612/68? the State, for families with a low income with a view to stimulating the birth rate. In its judgment of 14 January 1982 the Court first referred to its earlier judgment in Even 11in which it had held that it followed In accordance with the preamble to Regu­ from the provisions referred to and from the lation No 1612/68 the Court has objective pursued 'that the advantages interpreted broadly the requirement of equal which that regulation extends to workers treatment laid down in Article 7 (2). The who are nationals of other Member States basis of the equal treatment requirement is are all those which, whether or not linked indeed the fact that the person concerned is to a contract of employment, are generally a worker, but it is not restricted to matters granted to national workers primarily concerning the employment relationship. It because of their objective status as workers thus extends to advantages which are or by virtue of the mere fact of their residence granted 'by virtue of the mere fact of ... on the national territory and the extension of residence on the national territory' and which to workers who are nationals of other applies to provisions which 'have nothing to Member States therefore seems suitable to do with ... relationships [deriving from the facilitate their mobility within the contract of employment]'. In view of the Community'. 12 attitude which the Court has taken in this respect it cannot be assumed that advantages (in this case, the use of languages in the courts) are inapplicable 10 — Judgment of 14 January 1982 in Case 65/81, Reina v Landeskreditbank Baden-Württemberg, [1982] ECR 33. merely because they are granted in order to 11— Judgment of 31 May 1979 in Case 207/78, Ministère public protect minority rights. The requirement of v Even, [1979] ECR 2019. equal treatment applies to all Obstacles to 12 — In its judgment of 12 July 1984 in Case 261/83 (Castelli y mobility of workers'. Article 7 (2) of Regu­ ONTPS, [1984] ECR 3199) the Court referred to that as a well-established principle. lation No 1612/68 must therefore be

2688 MINISTÈRE PUBLIC v MUTSCH

interpreted broadly. The requirement of Let us consider first the situation of a equal treatment laid down in that article French-speaking worker on trial before the applies in areas which are not primarily Tribunal de Police in Eupen or St. Vith. governed by Community law but on which Although proceedings in those courts Community law may have indirect effects. normally take place in German, under Article 17 (1) of the Belgian law he may, regardless of his nationality, demand to be tried in French. The first conclusion to be drawn from the judgments cited must therefore be that the possible application of Article 7 (2) cannot be dismissed with the simple statement that matters concerning the organization of the Let us take a second example only slightly courts or the use of languages in criminal different from the actual case before the proceedings are not governed by Court. Suppose that an Italian national is Community law. In so far as such legislation born in the German-speaking region of may affect the legal status of a worker from Belgium and grows up to be bilingual. another Member State it must also be Within the circle of his family Italian is assessed in the light of Article 7 (2) of spoken but in everyday life, at school, with Regulation No 1612/68. his friends and in his training he speaks German. If by misfortune that Italian national should find himself on trial before the Tribunal Correctionnnel, Verviers, must In this regard the Commission has correctly he be denied the use of a language in which pointed out that it is not to be excluded that he has grown up and the use of which is German-speaking workers move to the permitted to Belgian nationals who find German-speaking region of eastern Belgium themselves in the same situation? A clearer for the very reason that in that region they case of discrimination on the basis of nati­ can use the German language in their daily onality is hard to imagine. lives. That is true not only with regard to the actual work place but also with regard to relations with other inhabitants of the area and with the administration; indeed, in the case now before the Court the contacts between the accused and the Belgian Such a result indeed seems to me to be Gendarmerie took place in German. It contradictory; as the Commission pointed would be inconsistent and incompatible with out at the end of its oral argument, it is the principle that workers from other certainly not in keeping with the Member States must be treated in the same establishment of a 'Citizens' Europe'. Nor manner as national workers if he were does it contribute to the integration of the suddenly to find that in criminal worker in the host country, in particular in proceedings he could no longer use the the linguistic region in which he lives. language which he can use in everyday life and in which workers who are Belgian nationals may, if they wish, be tried.

More to the point, such a result would also be incompatible with Community law, as it At this point let me give two examples results from the intent of the Treaty, Regu­ which may make the language situation lation No 1612/68 and the case-law of the somewhat clearer. Court of Justice.

2689 OPINION OF MR LENZ — CASE 137/84

Permit me, in closing, to speak briefly of the Court has held that Community law takes Belgian Law of 15 June 1935. That law precedence over other agreements concerns three languages: Dutch, French concluded within the framework of the and German. Expressions such as national Council of Europe in so far as it is more language, native language, linguistic favourable for individuals. 14 minority and so on are not to be found in it. I therefore do not consider it correct, in In order to summarize clearly the replying to the question referred by the obligations for the Member States Cour d'Appel, Liège, to rely on general concerned which result from my view of the principles of law regarding the protection of law, let me add that there is no question of linguistic minorities, as was done by one requiring the Member State to permit the government during the proceedings in this use of other languages in addition to those case before the Court. already available. In this case the question is whether a worker from another Member Nor can I agree with the view that it is State can rely on a legal provision regarding sufficient to place an interpreter at the language use which exists in the Member disposal of the accused, as is required by the State concerned and is available to its own European Convention on Human Rights. In nationals. Finally, I can see no reason why the area of fundamental rights the Court the proceedings before the Tribunal de has certainly drawn guidelines from the Première Instance, Verviers, should take Convention, in the sense that it has treated place in French with the assistance of an the Convention as supplying common interpreter, when that court was ready to minimum standards. 13 try the accused in German. The proceedings It is not contrary to the European would only become more complicated and Convention on Human Rights for more expensive, and the accused would be Community law to grant more extensive denied rights to which he is entitled under protection to individual rights. Indeed, the Community law.

C I therefore propose that the Court give the following answer to the question referred by the Cour d'Appel, Liège :

The principle of freedom of movement for workers laid down in Article 48 of the EEC Treaty and implemented in particular by Regulation No 1612/68 requires that a German-speaking worker who is a national of another Member State and lives in a German-speaking municipality in Belgium is entitled, to the same extent as a Belgian national in a comparable situation, to require that criminal proceedings against him take place in German.

13 — Judgment of 13 May 1974 in Case 4/73, Nold v Commission, [1974] ECR 491. Judgment of 27 October 14 — Judgment of 28 May 1974 in Case 187/73, Callemeyn v 1976 in Case 130/75, Frais v Council [1976] ECR 1589. Belgium, [1974] ECR 553. See also the Opinion of Mr Judgment of 13 December 1979 in Case 44/79, Hauer v Advocate General Lenz in Case 157/84, Frascoguav Caisse Land Rheinland-Pfalz, [1979] ECR 3727. des Depots et Consignations, [1985] ECR 1740.

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