Legal Translation vs. Legal Certainty in EU Law

See Art. 22 of the Charter of Fundamental Rights of the European Union, OJ C 326/391 of 26 October 2012: “The Union shall respect cultural, religious and linguistic diversity”. The respect for cultural diversity, which includes the respect for linguistic diversity is enshrined in Art. 167(1) and (4) Treaty on the Functioning of the European Union, OJ C 326 of 26 October 2012 (TFEU). According to recital 4 of the Decision No 1934/2000/EC of the European Parliament and of the Council of 17 July 2000 on the European Year of Languages 2001, OJ L 232/1, 14.09.2000 “all the European languages, in their spoken and written forms, are equal in value and dignity from the cultural point of view and form an integral part of European cultures and civilisation.” According to its recital 12 “the Council Conclusions of 12 June 1995 on linguistic diversity and multilingualism in the European Union emphasised that linguistic diversity must be preserved and multilingualism promoted in the Union, with equal respect for the languages of the Union and with due regard to the principle of subsidiarity”.

See the official website of the European Commission DG Translation, Official EU languages: http://​ec.​europa.​eu/​dgs/​translation/​translating/​officiallanguage​s/​index_​en.​htm.

According to Biel (2007), p. 146, this principle is named differently by different scholars: “This approach is referred to as the principle of plurilinguistic equality (van Els 2001), the principle of equal authenticity (Šarčević 1997: 64), or the PEAT, i.e. the principle of equality of authentic texts (Doczekalska 2005).”

Paunio (2013).

According to Art. 114(1) TFEU “the European Parliament and the Council shall […] adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”. Art. 114 TFEU (ex Art. 95 TEC, ex ex Art. 100a TEEC) was introduced for the first time by the Single European Act, OJ 1987 L 169/14 of 29.6.1987. Besides this general approximation rule, further legal grounds for approximation are Art. 115 TFEU (ex Art. 94 TEC, ex ex Art. 100 TEEC), Art. 352 TFEU (ex Art. 308 TEC, ex ex Art. 235 TEEC) and numerous special approximation rules (e.g. social policy: Art. 153 TFEU (ex Art. 137 TEC); environment: Art. 192 TFEU (ex Art. 175 TEC); competition: Art. 103 TFEU (ex Art. 83 TEC); consumer protection: Art. 169 TFEU (ex Art. 153 TEC); fundamental freedoms: Arts. 46, 50, 53, 59 and 62 TFEU (ex Arts. 40, 44, 47, 52 and 55 TEC); area of judicial cooperation in civil matters: Arts. 67 and 81 TFEU (ex Arts. 61 and 65 TEC) etc.). In the wider sense, the approximation of laws can be achieved both by EU legislative activity, ECJ/CJEU case law and the work of scientific groups and legal doctrine. Within the TFEU the notion of “approximation” is equalized with the one of “harmonization”, thought of different legal theories on the meaning of these terms. See Gutman (2014), pp. 27 et seq.

OJ 017/385, 06.10.1958. Pursuant to Art. 4 “regulations and other documents of general application shall be drafted in the four official languages” and according to Art. 5 “the Official Journal of the Community shall be published in the four official languages”. The Regulation was amended accordingly, upon accession of new MS.

In accordance with Art. 24(4) TFEU “every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 13 of the Treaty on European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language”.

Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of Regions – A New Framework Strategy for Multilingualism, COM(2005)596 final, Brussels, 22.11.2005.

United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

See Šarčević (2013), p. 7.

See Art. 358 TFEU and Art. 55 of the consolidated version of the Treaty on European Union (TEU), OJ C 326 of 26 October 2012. On the distinction between “Treaty languages” and “Official languages” see Urrutia and Lasagabaster (2007), p. 481.

Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (Text with EEA relevance), OJ L 60/34 of 28 February 2014.

Ibid., recital 19: “For reasons of legal certainty, the Union legal framework in the area of credit agreements relating to residential immovable property should be consistent with and complementary to other Union acts, particularly in the areas of consumer protection and prudential supervision. Certain essential definitions including the definition of ‘consumer’, and ‘durable medium’, as well as key concepts used in standard information to designate the financial characteristics of the credit, including ‘total amount payable by the consumer’ and ‘borrowing rate’ should be in line with those set out in Directive 2008/48/EC so that the same terminology refers to the same type of facts irrespective of whether the credit is a consumer credit or a credit relating to residential immovable property. Member States should therefore ensure, in the transposition of this Directive, that there is consistency of application and interpretation in relation to those essential definitions and key concepts.”

Ibid.

Pursuant to recital 74 of the MCD, MS “[…] should be able to provide that persons carrying out credit intermediation activities only on an incidental basis in the course of professional activity, such as lawyers or notaries, are not subject to the admission procedure […]” set out in the MCD “[…] provided that such professional activity is regulated and the relevant rules do not prohibit the carrying out, on an incidental basis, of credit intermediation activities”. For more details see Mišćenić (2014b), p. 224.

Exactly the same error occurred in the legal translation of Art. 3(f) of the Directive 2008/48/EC of the European Parliament and of the Council of 23. April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC OJ L 133/66, 22.5.2008 and its transposition into Art. 2(6) of the Croatian Consumer Credit Act, OG Nos. 75/09, 112/12, 143/13, 147/13-corrigendum and 9/15. See Čikara (2010b), p. 312.

According to the English language version of Art. 18(4) of the MCD: “Member States shall ensure that where a creditor concludes a credit agreement with a consumer the creditor shall not subsequently cancel or alter the credit agreement to the detriment of the consumer on the grounds that the assessment of creditworthiness was incorrectly conducted. This paragraph shall not apply where it is demonstrated that the consumer knowingly withheld or falsified the information within the meaning of Article 20.”

According to recital 49 of the MCD, “in order to promote the establishment and functioning of the internal market and to ensure a high degree of protection for consumers throughout the Union, it is necessary to uniformly ensure the comparability of information relating to the APRC throughout the Union”. See Mišćenić (2014b), pp. 243 et seq.

Art. 17(6) of the MCD.

See supra footnote no. 5. See Case C-120/78, Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR I-649, para. 8, where the ECJ speaks about “[…] obstacles to movement within the Community resulting from disparities between the national laws […]”.

Recital 19 of the MCD.

Ibid.

Legal basis for this duty existing also during the transposition period arises out of Art. 4(3) TEU and Art. 288(3) TFEU. See Case C-14/83, Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR I-01891; Case C-106/89, Marleasing v Comercial Internacional de Alimentación [1990] ECR I-4135; Case C-91/92, Faccini Dori v Recreb [1994] ECR I-3325; Joined Cases C-240/98 to C-244/98, Océano Grupo Editorial and Salvat Editores [2000] ECR I-04941; Joined Cases C-397/01 to C-403/01, Pfeiffer and Others [2004] ECR I-08835; Case C-105/03, Pupino [2005] ECR I-05285.

Derlén (2015), pp. 61 et seq.; Šarčević (1997), p. 218.

Paunio (2007), p. 398.

Art. 267 TFEU (ex Art. 234 TEC).

For in depth analysis of ECJ/CJEU case law see e.g. Łachacz and Mańko (2013); Paunio and Lindroos-Hovinheimo (2010); Glézl (2007).

Case C-19/67, Van der Vecht [1967] ECR I-445: “The need for a uniform interpretation of Community regulations prevents the text of a provision from being considered in isolation, but in cases of doubt requires it to be interpreted and applied in the light of the versions existing in the other three languages”.

See Šarčević (2013), p. 12. Šarčević invokes Case C-29/69, Stauder [1969] ECR I-419, under which para. 3: “When a single decision is addressed to all the Member States the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, and in the light in particular of, the versions in all four languages.” See also Case C-298/12, Confédération paysanne [1967] EU:C:2013:630, para. 22: “According to settled case-law, the necessity of uniform application and, accordingly, of uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires it to be interpreted on the basis of both the real intention of its author and the aim pursued by the latter, in the light, in particular, of the versions in all the other official languages (see, inter alia, Case C-569/08 Internetportal und Marketing [2010] ECR I-4871, paragraph 35, and Case C-52/10 Eleftheri tileorasit and Giannikos [2011] ECR I-4973, paragraph 23”.

See Derlén (2011), pp. 152 and 157.

Case C-1/02, Borgmann [2004] ECR I-3219, para. 30. However, by analysing the case law of the ECJ/CJEU, Šarčević came to a conclusion that it prefers to give prevalence to the effectiveness of the EU law over legal certainty of individuals. According to her, “it is not reasonable to expect the Court to strike a balance between legal certainty and multilingualism if favouring the individual would undermine the effectiveness of EU law”. See Šarčević (2013), p. 16.

According to the EU principle of state liability MS are obliged to compensate loss and damage caused to individuals by breaches of EU law for which they can be held responsible. The criteria for state liability derive from Art. 246 TFEU (ex Art. 215 TEC) and established case law of the ECJ/CJEU. See Joined cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy [1991] ECR I-05357; Joined Cases C-46/93 and C-48/93, Brasserie du Pęcheur [1996] ECR I-01029; Case C-5/94, Hedley Lomas [1996] ECR I-02553; Case C-224/01, Köbler [2003] ECR I-10239; Case C-173/03, Traghetti del Mediterraneo [2006] ECR I-05177 etc.

According to Biel (2007), p. 149 “[…] it is recommended to avoid system-specific terms of national law when drafting the EU legislation and replace them with more neutral terms […] “in Community law it is often necessary to avoid a term of national law which has no satisfactory equivalent in one or more Member States and which does not cover exactly a given notion or corresponds to a more general notion. In such a case a more appropriate, term should be used in its place (even if it is perhaps less elegant)”, (Manual of Precedents 2002:98). Similar recommendations are given to drafters in Principle 5 of the Joint Practical Guide of the European Parliament, the Council and the Commission […]”. On the contrary according to De Groot “[…] there are never one-to-one relations between the conceptual systems in different legal orders […]”, what renders the “[…] legal terminology always system-specific”. See De Groot (2012), p. 140 as quoted by Strandvik (2013), p. 3.

See Šarčević and Čikara (2009), p. 201.

Šarčević and Čikara (2009), p. 203.

“Credit agreement” is in Art. 1(2)(c) of the Directive 87/102/EEC defined as “an agreement whereby a creditor grants or promises to grant to a consumer a credit in the form of a deferred payment, a loan or other similar financial accommodation”. Pursuant to Art. 3(c) of the Directive 2008/48/EC “credit agreement means an agreement whereby a creditor grants or promises to grant to a consumer credit in the form of a deferred payment, loan or other similar financial accommodation, except for agreements for the provision on a continuing basis of services or for the supply of goods of the same kind, where the consumer pays for such services or goods for the duration of their provision by means of instalments”.

Art. 4(3) of the MCD defines “credit agreement” as an agreement whereby a creditor grants or promises to grant, to a consumer, a credit falling within the scope of Art. 3 of the MCD in the form of a deferred payment, loan or other similar financial accommodation.

More in detail Čikara (2010a), pp. 367 et seq.

Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, OJ L 042/48, 12/02/1987, as amended by Council Directive 90/88/EEC of 22 February 1990, OJ L 61/14 and Directive 98/7/EG of the European Parliament and of the Council of 16 February 1998, OJ L 101/17.

Consumer Protection Act, OG No. 96/03; CPA, OG Nos. 79/07, 125/07, 75/09, 79/09, 89/09, 133/09, 78/12 and 56/13. Provisions on consumer loan ceased to apply with the transposition of Directive 2008/48/EC into the Croatian CCA. The CPA currently in force, OG Nos. 41/14, does not regulate consumer credits.

Čikara (2010a), pp. 367 et seq.

E.g., when transposing Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, OJ L 149/22 into the second Croatian CPA, the Croatian Parliament rejected the draft of the CPA in the first reading due to incomprehensibleness and unnatural sounding of provisions on unfair commercial practices and because the terminology was not adjusted to the Croatian one. See Čikara (2007), pp. 1100 et seq.

Consumer Credit Act, OG Nos. 75/09, 112/12, 143/13, 147/13-corrigendum and 9/15.

Obligations Act, OG Nos. 35/05, 41/08 and 125/11. According to Art. 1021 of the OA “by the credit contract, a bank undertakes an obligation to make available a certain amount of money funds to a borrower for a definite or indefinite period of time, for a certain purpose or without any certain purpose, and the borrower undertakes an obligation to pay the agreed interests to a bank and to return the used amount of money at a time and in a manner agreed upon”.

Iorriati Ferrari speaks about the “nomadic meaning” of linguistically identical expressions which have a different conceptual meaning. See Iorriati Ferrari (2010), p. 6.

Bajčić (2010), p. 9.

More in detail Šarčević and Čikara (2009), p. 199.

Josipović (2013), p. 305; Mišćenić (2014a), pp. 280 et seq. See also Łazowski and Blockmans (2014), pp. 119 et seq.

Pursuant to Art. 146 of the Constitution of the Republic of Croatia, OG Nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/00 (consolidated text), 28/01, 41/01 (consolidated text), 55/01 (correction), 76/10, 85/10 (consolidated text), Croatian citizens are EU citizens and enjoy the rights guaranteed by the acquis, which are to be exercised in compliance with the conditions and limitations laid down in the EU Founding treaties and the measures undertaken pursuant to these treaties. The enjoyment of all rights guaranteed by the acquis is in Croatia guaranteed to all EU citizens. Under Art. 145 of the Constitution the exercise of the rights arising from the acquis is made equal to the exercise of rights guaranteed by the Croatian law and the protection of subjective rights based on acquis is guaranteed by the Croatian courts. In addition to constitutional guarantees, the obligation of applying and observing the EU law arises from key EU principles, such as the principle of loyalty and sincere cooperation, the principle of direct applicability of EU law, the principle of supremacy of the Union law and the principle of consistent interpretation.

Arts. 3–5 and 7 of the repealed Council Directive 85/577/EEC of 20 December 1985 to protect the consumer regarding contracts negotiated away from business premises, OJ L 372/31; Art. 5 of the repealed Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers regarding certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, OJ L 280/83.

See Šarčević and Čikara (2009), p. 205.

Arts. 57(1)(8–11), 61, 64, 70, 72–79, 84, 87–91, 93, 99–102, 104, 111, 138(1)(53–56), 140(1)(20), 147(1)(5).

Arts. 5(1)(o), 10(1)(p), 14, 15(1), 26(1) of the CCA.

von Bar et al. (2009), Munich, p. 569, define the right to withdraw from a contract as “a right to terminate the legal relationship arising from the contract […], without having to give any reason for so doing and without incurring any liability for non-performance […]”. Nevertheless, further provisions of the DCFR, as well as of the Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304/64, 22.11.2011 and of the Commission Proposal of 11 October 2011 for a Regulation of the European Parliament and of the Council on a Common European Sales Law (CESL), COM(2011) 635 final etc., make a clear distinction between the two legal concepts.

Arts. 50(1)(6), 74, 75, 87, 92, 140(1)(19), 138(1)(39) of the CPA.

Such as in Art. 44(2) of the CPA. On the other hand, there are provisions, such as Arts. 34(2)(5), 37(1)(4), 42(1)(8) of the CPA, where it is not clear whether the linguistical term “termination of contract” used therein, refers to termination or withdrawal.

Art. 4(2) of the CPA.

Case C-489/07, Messner [2009] ECR I-7315: “The provisions of the second sentence of Article 6(1) and Article 6(2) of Directive 97/7 […] on the protection of consumers in respect of distance contracts must be interpreted as precluding a provision of national law which provides in general that, in the case of withdrawal by a consumer within the withdrawal period, a seller may claim compensation for the value of the use of the consumer goods acquired under a distance contract. If the consumer were required to pay such compensation merely because he had the opportunity to use the goods while they were in his possession, he would be able to exercise his right of withdrawal only against payment of that compensation.”

Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2013, 6.2. available at: http://​eur-lex.​europa.​eu/​content/​pdf/​techleg/​joint-practical-guide-2013-en.​pdf: “[…] The aim is to leave no ambiguities, contradictions or doubts as to the meaning of a term. Any given term is therefore to be used in a uniform manner to refer to the same thing, and another term must be chosen to express a different concept.”

According to distinguished Croatian scholars Šarčević, Bratanić and Gačić, terminological consistency is essential in translations of the EU acquis and can be achieved only by the standardization of EU terms in Croatian. Having this goal in mind Prof. Dr. Susan Šarčević and Prof. Dr. Milica Gačić guided a scientific project “Croatian Terminology for EU Legal Terms” the results of which are available in the STRUNA database of Croatian Special Field Terminology headed by Prof. Dr. Maja Bratanić at: http://​struna.​ihjj.​hr/​en/​.

Šarčević (2013), pp. 2 et seq.; Iorriati Ferrari (2013), pp. 153 et seq.

By quoting Knox (1998), Marí Isidor and Strubell Miquel name five key problems concerning the authenticity of texts: “1) A version says something which is different from the others. 2) A version uses a word of unclear meaning, whereas the other versions use a word with a clear meaning. 3) A version uses the same word with different meanings, while the others use different words in each case. 4) The word used in one version has a broader meaning than the corresponding word used in the others. 5) A version uses a category which does not appear in the others.” See Marí and Strubell (2002), p. 13.

On the complex process of production of EU multilingual legislation see Šarčević (2013), pp. 8 et seq. Also Schilling (2010), pp. 49 and 51.

E.g. Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2013; Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of Regions – A New Framework Strategy for Multilingualism, COM(2005)596 final, Brussels, 22.11.2005; Communication from the Commission of 11 October 2004 to the European Parliament and the Council – European Contract Law and the revision of the acquis: the way forward, COM(2004)651 final; Interinstitutional agreement on better law-making, OJ C 321/1, 31.12.2003; Communication from the Commission of 12 February 2003 to the European Parliament and the Council – A more coherent European contract law – An action plan COM(2003) 68 final, OJ C 63; Manual of precedents for acts established within the Council of the European Union, 4th ed., General Secretariat of the Council of the European Union, 2002; Communication from the Commission to the Council and the European Parliament on European contract law, COM(2001) 398 final, OJ C 255; Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation, OJ C 73/1; Council Resolution of 8 June 1993 on the quality of drafting of Community legislation, OJ C 166/1, 17.6.1993; ‘Birmingham Declaration – A Community close to its citizens’ in European Council Presidency Conclusions 16.10.1992, DN: DOC/92/6 and many others.

Pursuant to Art. 21(1) of the EU Charter of Fundamental Rights “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”. Numerous scholarly articles analyse the EU multilingualism from the perspective of human rights and principles of equality and non-discrimination. For example, Urrutia and Lasagabaster (2007), pp. 8 et seq.; Šarčević (2013), pp. 1 et seq.

Strandvik (2013), pp. 10–11.

See European Commission Summary Report, Seminars on Quality of Legislation, How to interpret legislation which is equally authentic in twenty languages, Lecture by Advocate General Francis Jacobs, Brussels, 20.10.2003, p. 2, available at http://​ec.​europa.​eu/​dgs/​legal_​service/​seminars/​agjacobs_​summary.​pdf.

Apart from the uniform application and interpretation of the EU law by the CJEU, the effectiveness of EU law is guaranteed through the primary law duty of MS to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law (Art. 19(1) TEU) and through the principle of effective protection developed by the ECJ/CJEU case law. According to the principle of effective protection that is now also enshrined in Art. 47(1) of the EU Charter of Fundamental Rights, national courts and other bodies must guarantee the protection of rights that individuals derive from EU law, whereby in the absence of EU legislation, the embodiment of procedural rules governing actions for safeguarding these rights falls within the internal legal order of the MS by virtue of the principle of the procedural autonomy of those MS. Those rules cannot however be less favourable than those governing similar domestic actions (principle of equivalence) or make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness).

Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2013, 1.1. and 1.2. available at: http://​eur-lex.​europa.​eu/​content/​pdf/​techleg/​joint-practical-guide-2013-en.​pdf.

According to Mišćenić there is no need for the introduction of linguistical discrepancy between the same concepts used in the main text and the annex of the MCD. The reasons for this approach of the EU legislator are even less understandable because of the prescribed possibility for creditors and credit intermediaries to offer advisory services (Art. 4(21) of the MCD) to consumers and duty to provide them with adequate explanations of pre-contractual and contractual terms (Art. 16 of the MCD). See Mišćenić (2015), p. 135.

Šarčević (2010), pp. 23 et seq.

Šarčević (2014), pp. 47 et seq.; Hargitt (2013), pp. 433 et seq.; Iorriati Ferrari (2013), pp. 5 and 10.

Mišćenić (2012), pp. 729 et seq.

Gotti and Williams (2010), p. 9.

Šarčević (2014), p. 68.