Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

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

B. My position on this reference for a preliminary ruling is as follows.

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

1 Translated from the German.

2 Judgment of 11 April 1973 in Case 76/72, Michel S. v Fonds National de Reclassement Social des Handicapés, [1973] ECR 457

3 Judgment of 21 March 1985 in Case 172/84, Celestri v Amministrazione delle Finanze dello Stato, [1985] ECR 966.

4 Judgment of 6 June 1985 in Case 157/84, Fascogna v Caisse des Depôts et Consignations [1985] ECR 1744.

5 Judgment of 7 February 1979 in Case 115/78, Knoors v Secretary of State for Economic Affairs [1979] ECR 399 at p. 409.

6 Judgment of 4 April 1974 in Case 167/73, Commission v French Republic, [1974] ECR 359. Judgment of 13 July 1983 in Case 152/82, Forcheri v Belgium [1983] ECR 2323.

7 Judgment of 17 December 1980 in Case 149/79, Commission v Belgium [1980] ECR 3881.

8 Judgment of 15 October 1969 in Case 15/69, Südmilch v Ugliola, [1969] ECR 363.

9 Judgment of 3 July 1974 in Case 9/74, Casagrande v Landeshauptstadt München, [1974] ECR 773.

10 Judgment of 30 September 1975 in Case 32/75, Cristini v SNCF, [1975] ECR 1085.

11 Judgment of 14 January 1982 in Case 65/81, Reina v Landeskreditbank Baden-Württemberg, [1982] ECR 33.

12 Judgment of 31 May 1979 in Case 207/78, Ministère public v Even, [1979] ECR 2019.

13 In its judgment of 12 July 1984 in Case 261/83 (Castelli v ONTPS, [1984] ECR 3199) the Court referred to that as a well-established principle.

14 Judgment of 13 May 1974 in Case 4/73, Nold v Commission, [1974] ECR 491. Judgment of 27 October 1976 in Case 130/75, Prais v Council [1976] ECR 1589. Judgment of 13 December 1979 in Case 44/79, Hauer v Land Rheinland-Pfalz, [1979] ECR 3727.

15 Judgment of 28 May 1974 in Case 187/73, Callemeyn v Belgium, [1974] ECR 553. See also the Opinion of Mr Advocate General Lenz in Case 157/84, Frascogna v Caisse des Depôts et Consignations, [1985] ECR 1740.