Linguistic Obstacles for Migrating Professionals in the EU Internal Market: Time for a Legislative Overhaul

Abstract

In this article, I assess the law of the European Union (EU) as regards linguistic obstacles in the functioning of the internal market. In essence, the research aims to determine in which cases and to what extent an assessment of linguistic proficiency may be admissible under EU law for professionals seeking employment in another EU Member State than their own.

Indeed, assessing the linguistic skills of potential employees to determine their ability to communicate effectively in the workplace and with clients is quite common and widely accepted. In the same vein, self-employed private (medical) service providers who want to establish themselves in another EU Member State, or students wishing to study in another language than their own, may have to prove to possess adequate linguistic skills. However, making the threshold too high may amount to an indirect discrimination on the basis of nationality. Linguistic requirements are, furthermore, by no means limited to the exercise of a professional activity in a broad sense, but may also concern eligibiliy for social benefits, as these may be made conditional upon a certain level of proficiency in the local language.

It appears that there is a considerable degree of legal uncertainty surrounding these topics, not least with regard to self-employed professions. As it stands, EU law seems open to various interpretations as to the autonomy of EU Member States to regulate this field, not least when it comes to the intensity of language testing. The European Commission seems to focus primarily on free movement and is rather reluctant to establish clear guidelines. On a positive note, in its (limited) case law, the European Court of Justice has provided important albeit broad guidelines. It is argued that this topic is in need of a comprehensive legislative overhaul granting the EU Member States more autonomy, on the basis of clearly established criteria, to lay down and assess linguistic requirements for professionals migrating to their territory.