***, This interview is a part of the project “Interviewing European Union. Wilhelm Meister in EU law” – second edition. The project is managed by RALEA – The Romanian Association for Law and European Affairs & CELS – Centre for European Legal Studies. The editors are Mihai Sandru and Mihai Banu. More details: wwww.ardae.ro
Stefaan van der Jeught
Stefaan van der Jeught works as an official in the Directorate Communication of the European Court of Justice and is affiliated to the Centre for European Law of the Vrije Universiteit Brussel (VUB). In 2015, he earned a PhD at that University with a dissertation on Conflicting Language Policies in the European Union and its Member States.
- You recently published a book entitled “EU Language Law”. Isn’t the language of a nation a defining feature? Does the EU resemble a king of Tower of Babel? How should we understand unity in diversity from the point of view of current seemingly monolingual communication, in English?
I think we must make a clear distinction between the protection of linguistic diversity, on the one hand, and efficient communication on the other.
The latter inevitably requires a lingua franca. For the sake of efficiency, EU institutions, bodies and agencies need a common language. Likewise, if we want national administrations, judges or the police, for instance, to smoothly cooperate when recognizing administrative documents or judgments or when combating crime, we must also accept that a common language is required. In my view, it would be wrong to insist on diversity in that field, as it would only hamper achieving the common targets.
Conversely, language diversity must be protected where it is really necessary, in EU legislation or access to the EU Courts, for instance. In the same vein, Member States must continue to have the possibility to implement their own language policy, not least with a view of attaining social cohesion in their societies. As you say, the language of a nation is most certainly a defining feature, which is recognized in the Treaty (TEU) as well as in the EU Charter of fundamental rights.
Therefore, it is not quite right to compare the EU to the Kingdom of Babel. I am convinced that coexistence is possible between, on the one hand, a lingua franca, and on the other, the local languages. By the way, throughout its history, Europe has always used a lingua franca in addition to local languages: Greek (Koiné), Latin, French and currently de facto English.
2. Does the Lisbon Treaty bring anything new in this field – employing official languages at the European Union level?
After the failed ratification process of the Treaty establishing a Constitution for Europe (2004), the subsequent Treaty of Lisbon (2007) embraced the principle of linguistic diversity (currently Art. 3(3) TEU). Another amendment concerned the possibility to translate the Treaties into any other languages as determined by EU Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory (Art. 55(2) TEU).
In actual fact though, a striking feature of EU language policy is that the various amending Treaties and accessions have never given rise to a broad discussion about the language regime.
Essentially, the ECSC Language Protocol of 1952 has remained the basis of EU language policy. To put this in context, I may recall that the Schuman Declaration of 9 May 1950, the starting point of European integration, does not contain any reference to language. Likewise, the ensuing Treaty establishing the European Coal and Steel Community, signed in Paris on 18 April 1951, did not provide for a language regime for the institutions it established. This delicate issue was therefore left aside and referred to a ministerial conference and, eventually, to an Interim Committee of Lawyers. Eventually, the Committee proposed to grant equal official and working language status to all (then four languages). This compromise was confirmed at the Paris Conference of 23-25 July 1952, in the Protocol “sur le régime linguistique de la CECA” and formed the basis of the first Regulation of the EEC (1/1958), currently still in force.
More recently, the Convention on the Future of Europe, which prepared the draft Treaty establishing a Constitution for the EU, made only few efforts to tackle the language issue. Prof. Niamh Nic Shuibhne, for instance, argues quite aptly in this sense that language matters tend to be considered with an acute singularity of interest in the EU and that “this eerie and unsettling silence was equally evident throughout the Convention process”. Significantly, even the issue of linguistic diversity was never discussed in plenary session of the Convention as it was a politically too delicate matter, touching directly upon national and regional identities.
3. And also, in a broader perspective, what are the main features of the linguistic regime at the ECJ? Is French losing ground? Is English becoming lingua franca?
The Court of Justice is unique in this sense. Clearly, no other international Court in the world allows cases to be lodged in 24 languages. The Court makes it possible for all national judges, interested parties and EU Member States to use their own language in proceedings and it makes interpretation of EU law available in all EU official languages.
It is obvious that Judges cannot be expected to be proficient in all EU official languages that can be used before the Court. Given therefore that, when deliberating about a judgment, Judges are alone, without members of staff or interpreters, they must deliberate in one common language, which has, from the outset in 1952, been French.
For a good understanding, a clear distinction must be made between that deliberation language and the “language of the case”. The basic rule to determine the language in which the proceedings will take place, i.e. the language of the case, can be summarised as follows: he who brings the case before the Court is entitled to choose the language thereof.
Accordingly, in proceedings concerning requests for preliminary rulings, the language of the case is always that of the national court or tribunal making the reference. It follows that, in this type of proceedings, parties do not have a choice, as the language used before the national judge will automatically become language of the case before the Court of Justice.
In direct actions, it is the applicant who chooses the language. He may freely take any of the EU official languages to bring a case to the Court. His choice is not limited by his nationality or country of residence. Before the General Court, competition law cases are, for instance, often lodged in English, by companies from various EU Member States.
In some cases, though, as an exception to this principle, the language of the defendant has to be used: where the defendant is an EU Member State, the language of the case is the official language of that State. If the EU Member State concerned has more than one official language, the applicant may choose in which of those languages he brings an action. This typically concerns an infringement action brought by the European Commission against an EU Member State. The exception to the rule where the applicant chooses the language of the case stems from the necessity to safeguard the rights of the defence, but also from a certain political sensibility, so as to avoid a situation in which an EU Member State has to defend itself in another EU official language chosen by the European Commission. The linguistic privilege thus granted to EU Member States is in any case not likely to inconvenience private litigants, as they cannot start proceedings against an EU Member State before the Court of Justice.
In the event of an EU Member State bringing an infringement action against another EU Member State, the applicant EU Member State may nonetheless use its own official language to bring the action. This rule has been introduced under the 2012 ECJ Rules of Procedure.
4. Could you please comment on differences concerning the linguistic regime at the CJEU and ECHR?
It is difficult to compare both institutions because they form part of quite different frameworks (respectively, the EU and the Council of Europe). The role of the CJEU is broader and different from that of its counterpart in Strasbourg. They intervene in different stages of the proceedings. Another important aspect to take into consideration is the direct effect of EU law.
5. Also, which would be the main lessons drawn from the linguistic regime for the unitary European patent? And – in a broader framework – is language diversity an obstacle to (economic) competitiveness?
As regards the language arrangements for the European Patent with unitary effect (EU Patent) and a unified patent litigation system, objective criteria were used. For the first time ever, the Commission included impact analysis reports concerning the translation arrangements in its draft proposal.
This precedent of a more rational approach to language issues may be wholeheartedly welcomed. Yet, as I showed in my research, the actual caseload, which could have been easily assessed on the basis of the existing European Patent, was not taken into consideration. The assessment did take various other criteria into account, such as multilingualism and the impact of the language regime on stakeholders, particularly SME’s in the EU Member States, as well as overall costs of translation. It must be conceded, however, that the assessment could easily have led to alternative language regimes, using, for instance, only English, or English and German.
As prof. Philippe Van Parys demonstrates very convincingly in his remarkable book “Linguistic Justice for Europe and for the World”, the choice of several linguae francae instead of one is always very difficult to justify, as on the one hand, one language is actually sufficient for communication purposes while two or three languages make matters more complicated, and, on the other, the languages which are not taken feel even more discriminated against. He compares this in his book with children getting candy: if only one gets candy, the others may feel jealous, if several children get candy, those who are still left out might feel even worse than in the first scenario.
As to economic competiveness, it must be recalled that for many years, the EU Member States have not been able to reach agreement on the establishment of a system of unitary patent protection throughout the EU, mainly due to insurmountable language disputes. Already in 2000, the European Commission issued a proposal for a regulation with a view of establishing a Community Patent. A deadlock situation continued for many years. In the meantime, the Lisbon Treaty introduced a more specific legal basis for the creation of European intellectual property rights. Special attention was in this regard given to language aspects: whereas for creating the substantive intellectual property regime the ordinary legislative procedure is required, the language arrangements need unanimity within the Council, the European Parliament being merely consulted. No such unanimity could be reached concerning the language arrangements to be applied for an EU Patent. Faced with adamant opposition from Italy and Spain, the Council decided, in 2011, to launch the enhanced cooperation procedure to proceed with the unitary patent protection. Italy and Spain challenged, to no avail, the decision of the Council before the Court of Justice. Spain also challenged the Council Regulations implementing the enhanced cooperation, in particular with regard to the language arrangements. These Regulations establish a unitary patent protection system for all EU Member States participating in the enhanced cooperation. The Court of Justice dismissed both actions.
6. What is the common denominator of the expression “plain language” (“easily understandable language”) used in the Directive – as EU act?
A clear conclusion that can be drawn from my research is that the language arrangements with regard to labelling and consumer protection are often intricate, use quite divergent wordings and are in dire need of simplification and uniformisation.
Let me give some examples.
In some directives, it is explicitly left to the EU Member States to determine the languages to be used. Their choice may be limited to EU official languages, excluding thus languages such as Luxembourgish, Catalan or other regional and minority languages. This is for instance the case for the Directive on consumer rights, which explicitly indicates that it does not intend to “harmonise language requirements applicable to consumer contracts”. Therefore, EU Member States may maintain or introduce in their national law, language requirements regarding contractual information and terms, so as to ensure that such information is “easily understood by the consumer”.
Other examples of directives explicitly entitling the EU Member States to require that their official language(s) are used, include Directives on financial accounts, general product safety, as well as detergents.
By contrast, for edible caseins and caseinates, for instance, EU Member States may only prohibit marketing thereof on their territory if the particulars do not appear in a language easily understood by the purchaser and the information is not given by other means. Similar language arrangements are made for the sale of extraction solvents.
For instructions and safety information for toys, “a language easily understood by the consumer” may be used. That language may, however, be determined by the EU Member State of marketing. The Flavourings Regulation, the Food Enzymes Regulation, the Food Additives Regulation, as well as the Directives on explosives for civil use, and lifts provide for similar language arrangements.
Things may get rather complicated though, as manufacturers and importers of toys may, for some documents, use a language which is easily understood by the competent national authorities, whilst in other cases a language acceptable to that authority must be used and in yet other circumstances, the official language(s) of the EU Member State concerned.
Still another wording is used in the Footwear Directive, which leaves the manufacturers and their agents the choice between using pictograms or written indications about the material of the footwear. In the latter case, the language(s) may be determined by the EU Member State of consumption.
In my book, I plead for more clarity and uniformity in this respect: language provisions in particular with regard to the protection of consumers, contained in all of the regulations and directives relating to the internal market should be standardized. That standard formula should simply refer to guidelines which the Commission laid down already in 1993, encouraging multilingual information, while at the same time preserving the freedom of the EU Member States to always require the use of the language of the country of marketing of products (territoriality), as long as this requirement does not preclude the use of other languages or the recourse to other measures to inform the purchaser. By the way, a standard formula should also do away with the confusion that is currently caused by the use of various undefined concepts such as “official language of a State”, “administrative language”, “national language”, “language of the State of marketing”, etc. which are, furthermore, used without apparent criteria.