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2010. január 13.
| | Az EB-főtitkárság jogi szolgálatának véleménye a nyelvtörvény végrehajtási utasításairól | | | | | A HHRF birtokába került az a nem hivatalos vélemény, amelyet az Európai Bizottság főtitkárságának jogi szolgálata készített a szlovák nyelvtörvény végrehajtási utasításairól. Az alábbiakban közöljük a teljes, angol nyelvű szöveget.
Slovak Act on the use of the state language
Informal comments on the draft implementation provisions
We would like to thank you for the additional clarifications provided on the revised language act of 1 September 2009 as a follow-up to our informal exchange of views on 1 December 2009.
We have looked into the draft implementing provisions ("Principles for the Implementation of the Act on the State Language of the Slovak Republic") which were brought to our attention at this meeting. The informal comments set out below are based on a preliminary assessment of the draft principles by the Commission services.
In general, the Commission services noted that the draft principles constitute a considerable improvement with regard to the interpretation of the text of the state language act through a number of supplementary clarifications provided.
The comments set out below focus on the points that remain of concern from our point of view:
I. Comments on the substance of the draft implementing provisions
Based on a preliminary assessment by Commission services the following points should be raised in particular:
1. In Article 1 a reference is made to the lex specialis rule which is helpful. However, we consider that it would be clearer to explicitly state that legislation on the protection of minorities is not affected by the Act on the state language.
2. While a reference is made to the principle of non-discrimination (article 1), there is no general reference to the need to interpret the law in question in conformity with fundamental rights. However, such reference to the principle of fundamental rights (including the principle of non-discrimination, the freedom of expression and other rights in favour of persons belonging to minorities) would be helpful. In this context, a reference to international instruments such as those of the Council of Europe (and particularly the framework convention for the protection of national minorities and the European Charter of regional and minority languages) would also be opportune.
3. The last sentence in the section under Article 1 (The language regime regulated...") remains quite cryptic. It would be preferable to replace it by a more general statement clarifying that the Act does not affect EU law.
4. With a view to language requirements and in particular in relation to the expression "command of Slovak language" used in the text of the Decree (article 3), it is important to point out that according to a constant case law, the language requirement implying the ability to communicate effectively is important, and knowledge of a certain level of language may therefore be required for a job. However, the Court has constantly held that any language requirement must be reasonable, proportionate and necessary for the job in question, and must not be used as an excuse to exclude workers from other Member States. On this basis, specific circumstances, such as the particular post and individual circumstances must be taken into account on a case-by-case basis when evaluating the necessary linguistic skills. It would, therefore, be helpful if the implementing provision provided clearer guidance as to the level of linguistic skills required and as to how to measure the linguistic skills of individual applicants.
5. With a view to the obligation to broadcast and publish in Slovak (articles 5 and 8), we understand that this should not apply to cross-border services. As this is crucial for the internal market assessment, a specific provision clarifying this point would be appropriate.
6. As to the supervision of the use of the State Language in broadcasting (article 6), Article 5 of the Law on the State language of 15 November 1995 foresees comprehensive obligations regarding the use of the State Language for all broadcasters and programmes. Given that this would constitute a breach of Directive 2007/65/EC (Audiovisual media services directive) and of Article 49 TFEU a clarification in the implementing provisions that this is not intended would be useful.
7. Regarding the rules applicable to periodical and non-periodical publications (article 7), we understand that publications in minority or foreign languages will not be "supervised" which is in line with internal market principles. This point could usefully be pointed out more clearly in the implementing provisions, Nevertheless, the combined application of section 5, paragraph 4, a) and b) of the Act of the State Language as amended on 30 June 2009 and Article 2, v) of the Decree for the implementation of that Act appear to create the possibility to oblige periodical and non-periodical publications to use the Slovak language only. This could constitute an indirect discrimination, notably since the appropriateness and necessity of this rule to attain the aims of the legislation would be open to question.
8. As to the use of languages other than Slovak in the communications between patients/clients and medical staff (Articles 9 and 10), staff members seem to be under no obligation to speak the language of a minority, even where they have a sufficient command of it. This, in practice, could result in discrimination. To prevent such risk, it would be helpful to align article 10 with article 3, i. e. the authorities should have the duty to create conditions for the use of the language of a national minority, by ensuring, within reasonable limits, the availability of staff capable, as well as willing, to speak the language of the relevant minority.
9. Concerning the imposition of fines (article 15), it is noted that this procedure allows for administrative appeals as well as for resort to a court and, possibly, even to the Constitutional Court. However, it appears as if this right is restricted to legal subjects only where everybody who could be sanctioned should have the right of appeal. Further, the guidelines appear to put forward a somewhat inverted logic with regard to fundamental rights (protecting the interests of the state rather than those of the individual) and remain silent concerning the amount of fines (despite the wide range of such fines) which gives rise to a concernover the proportionality of the measure.
10. With regard to the public information on the application of such fines (article 16), there should be a problem with the rules on data protection given that this information is or can be sensitive.
11. As to the definition of the state language (article 17), the draft provisions appear to suggest that there is some codified form of Slovak language. In this context, it would be indispensible to state whether this codified form of Slovak (rather than the spoken language) should form the reference framework for the law including with regard to possible fines.
II. Comments on the form of the implementing provisions
The implementing provisions of the State Language Act are presented in the legal form of a government decree (uznesenie). We understand that in the Slovak legal system the publication of a government decree in the Collection of Laws does not render the decree generally binding. The proposed provisions are therefore only binding on the state administration as a result of the hierarchical organisation of the administration. As a consequence, private persons cannot directly derive any rights or obligations from them. Given this legal form of the implementing provisions, it can be doubted whether these provisions will be given priority in case of contradictions between the implementing provisions and the wording of the State Language Act itself or any other Slovak law with an implication on the use of languages.
The Slovak legal system also foresees the instrument of a government regulation (nariadenie) which is generally binding, and which is widely used to pass implementing acts. On such basis, the government may adopt regulations even in the absence of express authorization in a legislative act. The question, therefore, arises why the implementing provisions were not presented in such format providing much more legal certainty for the people possibly concerned.
III. Conclusion
The draft implementing provisions for the State Language Act of the Slovak Republic provide a number of useful clarifications regarding the interpretation of this Act. A number of remaining concerns are set out above. In addition it is to be underlined, however, that the practical implementation of the Act will be crucial for the protection of the rights of minorities in the Slovak Republic and the compatibility of the Sloval language regime with EU law.
It should be pointed out that the comments set out in this note are based on an informal and provisional assessment with the purpose of assisting the Slovak authorities in finalising the draft implementing provisions. They are not meant to endorse the Act or its implementing provisions and do not prejudge the position of the European Commission or its services in a formal legal procedure. |
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