Linguistic Equality and Language as a Legal Risk for Legislating in the European Union

The EU’s language system is exceptional, Luxembourgish being currently the only nationwide official language of a Member State, which is not at the same time an official language of the EU (Schilling 2008, pp. 1224–1225).

In 2014, 64,265 legal texts were published in the HTML format in 24 languages (see: http://​eur-lex.​europa.​eu/​statistics/​2014/​eu-law-statistics.​html?​locale=​en, last visited 14.04.2015).

Although legal texts adopted by EU institutions are equally authentic in all languages, the different language versions are in fact translations of the language version in which the text is originally drafted, even if they thoroughly follow the changes and evolution of the draft (see: Somssich et al. 2010, pp. 18–38).

The Commission’s Comprehensive Monitoring Report of 2003 on Malta’s preparation for membership notes that Malta started the process of translation of the acquis relatively late and faced a delay of 50,000 pages out of 70,000 to be translated into Maltese (see: http://​ec.​europa.​eu/​enlargement/​archives/​pdf/​key_​documents/​2003/​cmr_​mt_​final_​en.​pdf, last visited 14.04.2015). The Regular Report of 2001 on Malta’s progress towards accession urges the Maltese administration to undertake additional efforts in the area of translating the acquis “without prejudice to the outcome of the accession negotiations”, which suggests that the issue whether Maltese will in fact become an official language of the EU was still pending at that time (SEC (2001) 1751, p. 75). The first report including a separate chapter on the translation of the acquis was the Regular Report of 2000 underlining that no part of the acquis has been translated so far (Report of 8 November 2000, p. 63, see: http://​ec.​europa.​eu/​enlargement/​archives/​pdf/​key_​documents/​2000/​mt_​en.​pdf, last visited 14.04.2015).

See Council Regulation (EC) No. 920/2005 of 13 June 2005 amending Regulation No. 1 of 15 April 1958 determining the language to be used by the European Economic Community and Regulation No. 1 of 15 April 1958 determining the language to be used by the European Atomic Energy Community and introducing temporary derogation measures from these Regulations.

‘Multilingualism: An Asset for Europe and a Shared Commitment.’ Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions (COM (2008), 566 final.

Schilling (2008), p. 1225.

Article 55 TEU and Article 358 TFEU on the authentic languages of the Treaties, Article 20 and Article 24 TFEU on the rights to address institutions and bodies in any of the Treaty languages; see also Declaration No. 16 on the possibility to produce translations of the Treaty into official languages of the Member States which are not official languages of the EU.

Article 22 of the Charter.

Regulation No. 1 determining the languages to be used by the European Economic Community.

Articles 4 and 5 of the Regulation.

Articles 2 and 3 of the Regulation.

See Kupzok (2014).

Under the European Patent Convention the content of the European patents taking effect in the particular States that signed the agreement is equivalent to the patents granted by the national offices. The Convention requires the validation of the granted patent separately in each and every signatory State. The European Patent Organisation (EPO) granting the patent has only three official languages (English, German and French) in which patent applications can be lodged and patents will be granted. Most countries require by virtue of Article 65 (1) of the Convention the complete text of the European patent to be translated into their national language as a precondition for the European patent taking effect in the territory of that country. In order to reduce translation costs a special agreement was signed in 2000 (London Agreement) for a simplified post-grant language regime. The simplified regime is based on the three procedural languages of the EPO where patent documentation would always be available in either of these languages and patent claims in all of these languages. Moreover, signatory States not having either of these languages as one of their official languages could ask for the translation of the documentation into one of the procedural languages in which it is not available and the translation of the patent claims into their own official language.

The European Commission considered in its Impact Assessment accompanying the proposal on a unitary patent that even if the London Agreement reduced the costs of validation requirements in some Member States, the overall cost of validation in the three Member States with the EPO official languages (GER, FR, UK) equals EUR 680. These costs reach EUR 12,500 in 13 Member States and over EUR 32,000 if a patent is validated in the whole EU. It is estimated that the actual validation costs are around EUR 193 million per year in the EU (SEC (2011) 483 final, para. 3.1).

Proposal for a Council Regulation implementing the enhanced cooperation in the area of the creation of a unitary patent. Brussels, 13.4.2011, COM (2011) 216 final, 2011/0094 (CNS).

Under Regulation (EC) 40/94 on Community trademarks, the application for a Community trademark shall be filed in one of the official languages of the European Community while the applicant must indicate a second language which shall be a language of the Office the use of which he/she accepts as a possible language of proceedings for opposition, revocation or invalidity proceedings.

Paragraph 82 of the Judgment.

Ó Reagen (2010), p. 111.

Although it seems that later claims of the Spanish government against Regulation 1260/2012 were mainly based on the alleged breach of the principle of non-discrimination by creating a linguistic regime which is detrimental to persons whose language is not one of the official languages of the EPO, political declarations made during and after the negotiation phase demonstrate that the real reason behind the systematic refusal was in fact the unequal treatment of English, French and German on the one hand and Italian and Spanish on the other hand (see the speech of the Secretary of State of the Spanish Ministry of Foreign Affairs and Cooperation at the Council meeting on 30 May 2011). This is further underlined by the fact that according to the Spanish government the language regime for the Community trademark with five languages did achieve a balance between the interests of undertakings and those of the public while the Regulation 1260/2012 did not.

Italy, supported by Spain and Latvia, lodged in 2005 an action against a decision of the Commission according to which external publications of the vacancy notices for senior management posts in the Official Journal of the European Union shall henceforth be in English, French and German for a period which shall in principle end on 1 January 2007 (Case T-185/05, Italian Republic v European Commission (EU:T:2008:519)). The decision was explained by the lack of translation capacity. At the same time the annulment of a vacancy notice published in the meantime was also sought by the Italian government. Italy pleaded that the Commission has breached the principles of non-discrimination on the grounds of nationality and respect for linguistic diversity. It submitted that adopting the Kik type of restrictions in language use is only permitted for the Council, not for the Commission. The Court of First Instance held that candidates for EU institution posts cannot benefit from the equal treatment provision of Regulation 1/58 since that Regulation does not apply to relations between the institutions and their officials and other servants since it only lays down the language rules applying between the institutions of the European Community and a Member State or a person coming under the jurisdiction of one of the Member States. Similar claims were lodged later by Italy (Joined Cases T-166/07 and T-285/07, Italian Republic v European Commission (EU:T:2010:393)), equally unsuccessfully.

The decision on the enhanced cooperation was taken in March 2011 (2011/167 [2011] L 76/54), the two Regulations were adopted in December 2012: Regulation (EU) No. 1257/2012 of the European Parliament and the Council of 17 December 2012 implementing the enhanced cooperation in the area of the creation of unitary patent protection, Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing the enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements.

See paragraphs 27–41 of the Judgment.

See paragraph 76 of the Judgment.

Lamping (2015), pp. 6–7.

Case C-147/13, Spain v Council (EU:C:2015:299).

Belgium, the Czech Republic, Denmark, Germany, France, Luxembourg, Hungary, the Netherlands, Sweden, the United Kingdom, the European Parliament and the European Commission were granted leave to intervene.

See paragraph 42 of the judgment.

See paragraphs 44–46 of the judgment.

The entry into force of the regulations is dependent of the ratification by at least 13 signatory states of the Agreement on a Unified Patent Court (OJ C 175/1, 2013.6.20.), an inseparable part of the so-called patent package. Interestingly Italy—not participating in the enhanced cooperation—signed this agreement, while Poland did not (Pila and Wadlow 2015, p. 46).

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

While according to The Commission’s report of 2010 only 11 Member States provided information on their applicable legislation in a language other than their own, the situation has slightly improved later. The current state of play in 2014 shows that most Member States have chosen to provide the information in English, but at the same time, we can see that some Member States have clearly gone beyond the Directive. The Czech website, for instance, is also available in Spanish and French, while the Danish website can be accessed in Polish and Lithuanian too.

Regulation (EC) No. 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No. 3052/95/EC.

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare.

Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers.

Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System (‘The IMI Regulation’).

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Better Governance of the Single Market Through Greater Administrative Cooperation: A Strategy for Expanding and Developing the Internal Market Information System (IMI), COM (2011) 75 final, paragraph 1.2.

See Joamets (2014), pp. 154–155.

Regulation (EU) No. 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC.

Article 4 of the Regulation.

IMI User Handbook (2012) point 2.2.

Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.

Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System.

Somssich et al. (2012), p. 102.

The European Professional Card is an electronic certificate proving either that the professional has met all the necessary conditions to provide services in a host Member State on a temporary and occasional basis or the recognition of professional qualifications for the establishment in a host Member State.

COM (2013) 228 final.

Boehm et al. (2014), p. 309.

The Regulation would cover all “public documents” issued by an authority of a Member State and presented to the authorities of another Member State. Draft Article 3 enumerates twelve categories relating to which the document might have evidentiary value.

Heidenbauer (2011), p. 221.

COM (2002) 694.

See page 7 of the Communication.

See Point 8 of Annex VI of Directive 2007/59 of the European Parliament and the Council of 23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community as amended by Commission Directive 2014/82/EU.

Article 8 of Directive 2006/23 of the European Parliament and the Council of 5 April 2006 on a Community air traffic controller licence.

Regulation 1214/2011 of the European Parliament and the Council of 16 November 2011 on the professional cross-border transport of eurocash by road between euro-area Member States.

See Impact Assessment of the Proposal, SEC (2011) 1558 final, p. 17.

See Article 19 of Council Regulation 1346/2001 of 29 May 2000 on insolvency proceedings on the translation of the appointment decision of the liquidator or Article 42 on the translation of claims lodged by creditors of other Member States, Article 13 of Council Directive 2002/8 of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes on the translation of applications for legal aid.

See Article 20 of Regulation 805/2004 of the European Parliament and the Council of 21 April 2004 creating a European Enforcement Order, Article 21 of Regulation 1896/2006 of the European Parliament and the Council of 12 December 2006 creating a European Order for Payment Enforcement, Article 21 of Regulation 861/2007 of the European Parliament and the Council of 11 July 2007 establishing a European Small Claims Procedure, Article 41 of Regulation 2201/2003 of 27 November 2003 concerning the jurisdiction, recognition and enforcement of judgments in matrimonial matters as well as matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, Article 20, Article 28, Article 38 and Article 59 of Regulation 4/2009 of 19 December 2009 on the jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000.

Article 8 of Regulation 1393/2007. The same approach is followed in the case of refusal by Regulation 861/2007 of the European Parliament and the Council of 11 July 2007 establishing a European Small Claims Procedure.

See the case report of Markus Würdinger on a Decision of 2010 of the Landgericht Bonn (Würdinger 2013). See also the Decision of the Court in the Case C-14/07, Ingenieurbüro Michael Weiss (EU:C:2008:264) in which the Court maintained, by interpreting Article 8 of the Regulation, that if the addressee of a document served has agreed in a contract concluded with the applicant in the course of his business that correspondence is to be conducted in the language of the Member State of transmission, that does not give rise to a presumption of knowledge of that language, but is evidence which the court may take into account in determining whether that addressee understands the language of the Member State of transmission.

The same formulation is found in Article 5 of Council Regulation 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

Commission’s Report on the application of the Regulation (COM (2013) 585 final).

Study on the application of Council Regulation (EC) No. 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters, European Commission, Directorate-General for Justice, 2014.

See point 4.1.3. of the study.

Everyone charged with a criminal offence has the following minimum rights…..(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

COM (2003) 75 final.

Vogler (2015), p. 104. During the early preparatory phase of the proposal, the Commission identified in some States serious shortcomings like court interpretation provided by non-professionals, poor quality translation and interpretation due to low rates of pay, limitations on the documents translated for defendants (Morgan 2011, p. 6).

Vogler (2015), p. 105. The Commission’s proposal, still based on the pre-Lisbon legal basis, was accompanied by a Resolution encouraging Member States to promote measures on the involvement of bodies representing interpreters and translators, qualification of interpreters and translators, training, registration of qualified interpreters and translators, remote access to interpretation, and codes of conduct as well as guidelines on best practices (Morgan 2011, p. 7).

Rafari (2012), p. 81.

Article 4 of the Directive.

Vogler (2015), p. 106.

Bajčić (2015), p. 226.

Bajčić (2015), p. 221.

Braun (2011).

AVIDICUS 3: Assessment of Video-Mediated Interpreting in Criminal and Civil Justice – Assessing the Implementation; LIT, Search a database of legal interpreters and translators, is to be set up on the e-Justice portal. TraiLLD: Training in Languages of Lesser Diffusion.