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Multilingualism and Multijuralism: Assets of EU Legislation and Adjudication?

Published online by Cambridge University Press:  06 March 2019

Theodor Schilling

Abstract

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The article discusses whether EU arrangements allow the opportunities offered by its multijuralism and multilingualism to be realized and the problems raised by them to be minimized. Those opportunities are defined, in the case of multijuralism, as the EU having at its disposal a toolbox of many legal solutions for many situations. In the case of multilingualism, one has to distinguish between a strong variety (all language versions are equally authentic) and a weak variety (one authentic language and so many official translations). One opportunity offered by both varieties is that multilingual laws are linguistically superior to monolingual ones because of the clarifying effect of translations. An opportunity offered only by the strong variety is that the meaning of such a law can best be pinned down by linguistic triangulation, i.e. by approaching it from different linguistic angles. Problems caused only by strong multilingualism are the intractability of contradictory language versions of a law and the very indeterminacy of all laws, which is the necessary counterpart of the possibility of linguistic triangulation. Concerning multijuralism, the article finds ample possibilities for EU lawmakers and adjudicators alike to make use of the toolbox. Concerning multilingualism, while the clarifying effect of translation is real enough, current arrangements allow the EU to profit from it only at some legislative stages. Further, linguistic triangulation is found not to be a workable concept in the EU, which has 23 authentic official language versions. Strong multilingualism therefore, cannot offset the problems it causes.

Type
Articles
Information
German Law Journal , Volume 12 , Issue 7 , 01 July 2011 , pp. 1460 - 1491
Copyright
Copyright © 2011 by German Law Journal GbR 

References

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80 There exists a rather well defined class of judgments (although the definition apparently has not been made public), which are not published in the Court Reports. Those judgments are translated from the French only into the language of the case and can be found on the ECJ's website in those two languages. For example: Case C-17/09, European Commission v. Federal Republic of Germany, judgment of 21 January 2010, 2010 O.J. (C 179) 9, available at the Court's website, http://curia.europa.eu (last accessed: 11 July 2011).Google Scholar

81 Cf. e.g. ECJ, Joint cases C-57/09 and C-101/09, Federal Republic of Germany v B and D, judgment of 9 November 2010, para. 13, NVwZ 2011, 285, also available at the Court's website, http://curia.europa.eu (last accessed: 11 July 2011) (quotation of Recital 9 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 2004 O.J. (L304) 12 and para 118 (dictum proprium of the Court): “à titre discrétionnaire par bienveillance ou pour des raisons humanitaires” (“on a discretionary basis on compassionate or humanitarian grounds”) versus “aus familiären oder humanitären Ermessensgründen” (on discretionary family or humantarian grounds).Google Scholar

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93 The same was true for the then 11 official languages of the EU: Isolde Burr & Tito Gallas, Zur Textproduktion im Gemeinschaftsrecht (For Text Production in the Legal Community), in Rechtssprache Europas. Reflexion der Praxis von Sprache und Mehrsprachigkeit im supranationalen Recht (Legal Language of Europe. Reflection on the Practice of Language and Multilingualism In Supranational Law) 195, 199 (F. Müller and I. Burr eds., 2004). It is no coincidence that the ideal of the plurilingual drafting has been exemplified by legislative drafting in the Swiss Canton of Berne, making use of its only two official languages: schweizer, supra note 24.Google Scholar

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96 This lack of interest may easily lead to the distortion of linguistic arguments. An example taken from a (quasi-) parliamentary context is telling. One of the subjects of the debates of the Convention on the Charter of Fundamental Rights of the EU was the question whether the Preamble of the Charter should refer to the religious foundations of Europe. The Convention decided against such a reference and in favor of a reference to Europe's ‘spiritual’ heritage. The German party did not like this outcome. Indeed, for rather spurious “translation reasons” this concept was successfully claimed to have to be rendered as “geistig-religiös” in German, making the German version the only one retaining an undisguised reference to religion (2nd para of the Preamble). On the relevant debates of the Convention: Matthias Triebel, Religion und Religionsgemeinschaften im künftigen Europäischen Verfassungsvertrag. Die Debatten des Europäischen Konvents (Religion and Religious Communities in the Future European Constitutional Treaty. The Debates of the European Convention), para. 82-88, available at http://www.nomokanon.de/abhandlungen/014.htm (last accesssed: 31 March 2011).Google Scholar

97 The “suitable linguistic remedy” is apparently sought by the EP's legal/linguistic experts (on whom cf. text at infra note 103) under the guidance of the President.Google Scholar

98 The clause quoted from Federal Republic of Germany v. B and D, supra note 81, appears to be a case in point. There is no earthly reason why a translator should render “bienveillance” or “compassionate grounds” as “familiäre … [G]ründe”. Rather, it appears that, most likely at the instigation of the German representative in the Council, the wording of the pertinent German law was inserted into the German version of the directive. See also the French Conseil d'état, Rapport public 1992, Le droit communautaire (Etudes et documents n. 44): ‘là où les juristes cherchent la précision, les diplomates pratiquent le non-dit et ne fuient pas l'ambiguïté. Il arrive donc, plus souvent qu'on ne croit, qu'ils ne se mettent d'accord sur un mot que parce qu'il n'a pas la měme signification pour tout le monde. […] De měme encouragent-ils des techniques de rédaction qui permettront de laisser subsister ici et là d'intéressantes – et prometteuses – contradictions.'Google Scholar

99 While the Commission's legal/linguistic experts in principle have the task to intervene in the case of legislative proposals the Commission submits to EP and Council, they consider it regularly more important to concentrate on the Commission's own law-making which is immediately finalized: Stefania Dragone, The Quality of Community Legislation and the Role of the European Commission Legal Revisers, in Multilingualism and the Harmonisation of European Law, supra note 25, at 99, 101.Google Scholar

100 Cf. the interpretation (pursuant to Rule 211 (5)) of Rule 146 of the Rules of Procedure of the EP, available at http://www.europarl.europa.eu: “Where it has been established after the result of a vote has been announced that there are discrepancies between different language versions, the President shall decide whether the result announced is valid … If he declares the result valid, he shall decide which version is to be regarded as having been adopted. However, the original version cannot be taken as the official text as a general rule, since a situation may arise in which all the other languages differ from the original text.” (Last accessed: 11 July 2011).Google Scholar

101 While this final control is imperative in the case of strong multilingualism, it would also be strongly advisable in the case of the weak variety.Google Scholar

102 The ECJ appears to be less demanding. Following the Opinion of its Advocate General, it has held that certain amendments “do not appear to have exceeded the limit applicable when language versions of a Community measure are harmonized”, ECJ, Case C-380/03, Federal Republic of Germany v. European Parliament and Council of the European Union, 2006, E.C.R I-11573, para. 127. Neither the Court nor its Advocate General say anything about that limit which obviously is less restrictive than the limit laid down in ECJ, Case 131/86, United Kingdom of Great Britain and Northern Ireland v. Council of the European Communities, 1988 E.C.R 905, para. 35, i.e. the correction of spelling and grammar. It is noteworthy that judgment C-380/03 was handed down before the EP procedure to deal with the results of legal/linguistic finalization described in the text below had been in place.Google Scholar

103 The actual basis of the procedure appears to be the Joint Declaration on Practical Arrangements for the Co-Decision Procedure, 2007 O.J. (C 145) 5; and cf. Council's Rules of Procedure, art. 22: “[T]he Legal Service shall be responsible for checking the drafting quality of proposals and draft acts at the appropriate stage.”Google Scholar

104 The Council's Legislative Quality directorate is staffed by some 70 experts, three for each official language: Jean-Paul Piris, ‘The Council Legal Service', available at www.europeanlawyer.co.uk/yb_europeancouncillegalservice.html (last accessed: 31 March 2011). The actual number appears to be 90: Robinson, supra note 29. The corresponding unit of the EP appears to be staffed by four experts for each official language.Google Scholar

105 Rules of Procedure of the European Parliament 216(2), 180(2), supra note 59.Google Scholar

106 Guidance given by the Council's legal service, insofar as here relevant: cf. House of Lords, Select Committee on European Union Session 2001-02 Twenty-Third Report Part 3: Summary of Correspondence (ordered to be printed 18 June 2002), para. 28, available at http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/publications/previous-sessions (last acccessed: 11 July 2011). The coming into force of the Lisbon Treaty has changed nothing on that matter.Google Scholar

107 Rules of Procedure of the European Parliament, 180(1)&(2), supra note 59.Google Scholar

108 Cf. Advocate General Léger, Opinion, Federal Republic of Germany v. European Parliament and Council of the European Union, supra note 102, para. 193.Google Scholar

109 Cf. EC-DGT, supra note 3, 23: “The language of [the antecedent] political consultations and the drafting is usually the source language of the text or another lingua franca (generally English or French).”Google Scholar

110 In Federal Republic of Germany v. European Parliament and Council of the European Union, supra note 102, eight of the (then) eleven language versions were amended: cf. Opinion, para 193. According to Robinson, supra note 29, the jurist-linguists meeting goes through the whole text in English and agrees on the final English text, which is then distributed to the Council lawyer-linguists for all the other languages. The jurist-linguists meeting does not consider any points that are specific to other languages, unless they raise issues that can be resolved only by changing the original (retroaction).Google Scholar

111 EC-DGT, supra note 3, at 37: “[t]he source text might have to be modified retroactively according to other language versions if these reveal errors or ambiguities.”Google Scholar

112 Cf. text at supra note 98; Robinson, , supra note 5, 134: ‘At this stage, it is difficult to improve the quality of drafting significantly because of the risk of undoing a delicate political compromise.'Google Scholar

113 Cf. Dragone, supra note 99; Robinson, , supra note 5, at 132.Google Scholar

114 Cf. citations, supra note 90.Google Scholar

115 Similarly, , Walter van Gerven, The Role and Structure of the European Judiciary Now and in the Future, European Law Review (ELR) 211, 222 (1996), distinguishes between “cases where the law is sufficiently clear for a decision simply to be reached by applying it” and “less straightforward” cases.Google Scholar

116 Cf. text at supra note 23.Google Scholar

117 Colneric, Ninon, Recht und Sprache, in Law and Language, supra note 25, at 15, 21–22.Google Scholar

118 This problem is exacerbated by the feature of translation at the ECJ reported in the text at supra note 81.Google Scholar

119 Cf. text at supra note 106.Google Scholar

120 To develop such an equivalent adapted to the needs of the Court would require but a minor change in the current arrangements: the draft judgment would have to be submitted before the final deliberation not only to the lecteur d'arrěts but also to the translator of the language of the case — while not the rule, this happens already quite often to expedite proceedings — and the translation, being the authentic version of the judgment, would have to be, together with the French version, the subject of the final deliberation.Google Scholar

121 Cf. text at supra note 79.Google Scholar

122 Under the practice of the Court which has no mechanism to make the authentic language-of-the-case version of a judgment its own there are good reasons for this approach. To give but one example: Nold Kohlen und Baustoffgroßhandlung v. Ruhrkohle Aktiengesellschaft, supra note 90, para. 14. The French version of the clause in the judgments stating that there are, under EU law, inherent limits to fundamental rights (“… les droits garantis, loin d'apparaitre comme des prérogatives absolues ….”) has never changed. In contrast, there are at least five German versions, most of them also used in judgments in which German was the language of the case. See Theodor Schilling, Bestand und allgemeine Lehren der bürgerschützenden allgemeinen Rechtsgrundsätze des Gemeinschaftsrechts (Inventory and General Teachings of the Civil Protective General Principles of Community Law), Europäische Grundrechte-Zeitschrift (EuGRZ) 3 (2000).Google Scholar

123 If an argument in the French draft of the judgment is based on a former judgment of the Court, and the same argument cannot be made in the identical language of the former and the present case, the Court may be prepared to cut this argument. To give an example: if the former judgment, French version, referred to véhicule and, German language-of-the-case version, to Kraftfahrzeug, the argument that motorboats are covered by the former judgment is possible in French but not in German.Google Scholar

124 If one of the language versions is the result of a typing error, and if this error is discernible, as such, from other data contained in the Regulation, and from a comparison with the other language versions, these other versions are decisive: ECJ, Case C-64/95, Konservenfabrik Lubella v. Hauptzollamt Cottbus, 1996 E.C.R I-5105, para. 18.Google Scholar

125 Cf. e.g., ECJ, Case 100/84, Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland, 1985 E.C.R 1169, para. 17.Google Scholar

126 Cf. Schilling, , supra note 13, at 55-56.Google Scholar

127 Indeed, according to Monateri, P.G., Clashing Strategies: Law, Language and Identities in a Framework of Failures?, in Multilingualism and the Harmonisation of European Law, supra note 25, at 209, 217: “[the multilingual] regime is wholly nullified … by the way in which the Court operates.”Google Scholar

128 Cf. Lewandowska-Tomaszczyk, supra note 18.Google Scholar

129 For a variety of reasons the uniform interpretation of divergent language versions is but one of three equally unappealing solutions; cf. Schilling, supra note 13, 52 et seq. Google Scholar

130 Schilling, , supra note 13, at 64 et seq. Google Scholar

131 Cf. text at supra note 108. According to Robinson, supra note 29, this is generally the English text.Google Scholar

132 Cf. text, supra note 41.Google Scholar

133 In trying to apply the reference version, the Member State courts’ reasoning is similar to that followed by the Hong Kong courts. See Cao, supra note 32.Google Scholar

134 Cf. e.g. Robinson, supra note 5, at 131.Google Scholar

135 Cf. Robinson, , supra note 5, at 131: 15%; EC-DGT, supra note 3, at 89: 12% (2008). The latest available percentage appears to be 10%, Robinson, supra note 29.Google Scholar