[lg policy] book notice: What You Need To Know About EU Language Law

Tue Feb 2 15:58:22 UTC 2016

 What You Need To Know About EU Language Law
by Stefaan Van der Jeught <http://slator.com/author/stefaan-van-der-jeught/>
on February 2, 2016
Features <http://slator.com/features/>
[image: What You Need To Know About EU Language Law]

In a recently published book (EU Language Law), based on PhD research, I
explore all current language regulations and arrangements in EU law, such
as linguistic regimes of EU institutions, bodies and agencies, language
provisions in the area of freedom, security and justice as well as in the
internal market. In an exclusive for Slator, I highlight some of the
findings of the research in ten points.
1. No clear-cut criteria for EU Treaty or official languages

Whether a given language rises or not to the status of EU Treaty language
depends, first of all, on the EU Member State concerned. This leads to the
rather paradoxical situation that the number of speakers is irrelevant for
a language to acquire EU language status. To take the most extreme
examples, Catalan, spoken by millions of citizens, is not an EU Treaty
language, whereas many far less widely spoken languages, such as Maltese or
Irish, do enjoy such status.
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In addition, Treaty language status has been regarded essential to get EU
official language status. This follows from the discussion regarding a
limited official language status for Catalan, Galician and Basque, where
the presidency of the Council held that only EU Treaty languages may be
chosen. Yet, in relation to Turkish, the EU seems prepared to grant that
language official status provided that an agreement is reached on the
reunification of Cyprus, regardless of the fact that Turkish is not a
Treaty language. In actual fact, Turkish could be much closer to acquiring
EU official language status than many observers think. An agreement on the
reunification of Cyprus is all that is required.
2. A huge gap between theory and reality

>From the early days of the European Coal and Steel Community until the
present European Union, the language issue has never been properly dealt
with. A formal regime of equality of languages and full multilingualism was
established as a recognition of the cultural sovereignty of the Member
States. As a result, all languages were granted Treaty, official and
working language status and became equally authentic.

In practice, however, decisions on internal linguistic arrangements (a
limited set of working languages) were, for a large part, left to the
various EU institutions.

3. Full language regimes are not the general rule

Despite the general duties stipulated in the basic Regulation (1/1958) on
the linguistic regime of the EU, the cases in which a real legal obligation
exists to use all official EU languages are essentially limited to two
fields of operation: legislation and direct communication with EU Member
States and private persons. The EU courts, which fall outside the scope of
Regulation 1/1985, also operate on a multilingual basis, allowing for cases
to be brought in all EU official languages.
4. The law: the core of multilingualism

The obligation to publish EU legislation in all the EU official languages
must be strictly observed and no exceptions are allowed.

Legal certainty indeed requires that all subjects of EU law should be
afforded easy access to that legislation in their own language. The case in
point in this regard is Skoma-Lux, in which the European Court of Justice
clearly held that a regulation is only enforceable against individuals in a
Member State if it has been published in the language of that State.

In that regard, all twenty-four EU official languages are equally
authentic. This may lead to interpretation problems. A solution would be to
provide for a reference version in one EU official language for every act
of legislation, preferably the language in which the act was originally
drafted. It may be noted in this context that a similar rule exists for
judgments of the Court of Justice, which are authentic only in the language
of the case.
[image: Dr. Stefaan Van der Jeught, Press Officer of the European Court of
Justice]

Dr. Stefaan Van der Jeught
5. What about direct communication with companies and citizens?

EU Member States, as well as citizens or companies have, in principle, the
right to choose in which official EU language written and oral
communications with the EU institutions and bodies will take place.

This right is, however, not unlimited, and in language disputes between EU
institutions and Member States no clear-cut rules are discernible. Case law
shows that the Court of Justice assesses the effects of linguistic
irregularities on a case-by-case basis. Only if, were it not for that
irregularity, the procedure could have led to a different result, may the
act concerned be annulled.

Likewise, with regard to communications between an EU institution and
companies, it is settled case law that an infringement of the linguistic
rules does not automatically entail nullity of the act at issue. Rather,
such a consequence is limited to cases in which the linguistic irregularity
entailed harmful effects.

Moreover, communication with a number of EU bodies and agencies may not
necessarily take place in all official EU languages, as they are governed
by specific language arrangements.

6. Many restricted language regimes exist

Although, formally, all those languages which have acquired EU language
status are equal, in practice, a clear hierarchy exists, creating a gap
between the legal and the actual situation.

As to language arrangements in the EU public administration, restricted
language regimes have evolved over the years, based on a rather broad
interpretation of article 6 of Regulation 1/1958, whereby the EU
institutions “may stipulate in their rules of procedure which of the
languages are to be used in specific cases”. This article provides the
legal basis for quite a large linguistic autonomy of the EU institutions.

The case law of the Court of Justice has, essentially, confirmed the
legality of such restricted language regimes. The Court has consistently
taken a rather pragmatic view of the language issue in this regard and has
held, in the landmark Kik case as well as in subsequent judgments, that
there is no general principle of equality of languages in the EU, nor that
every citizen is entitled to have a version of anything that might affect
his interests drawn up in his language in all circumstances. Accordingly,
when justified and proportionate, restricted language regimes may be
established.

It should be recalled that, contrary to what is often held, such restricted
language regimes are, by no means, limited to purely internal situations.
Hence, on the explicit basis of Regulation 1/1958, information available on
websites and in publications, relations with the media, public
consultations, meetings with representatives of national administrations,
as well as calls for expression of interest, can, as the case may be, all
take place in a restricted number of languages only, most often English,
French and German.

In this context, it was shown that most EU institutions apply, in varying
degrees, restricted language regimes. The most multilingual institutions
are the European Parliament and the Court of Justice.

For the more than forty EU agencies, heterogeneous language arrangements
exist.

Essentially, they can be divided into four types, i.e. agencies explicitly
governed by Regulation 1/1958, agencies without any formal language
arrangements, agencies where the management Board (or the Council of the
EU) is entitled to lay down the language regime and, lastly, the special
case of the Trade Mark Office, with a language regime, restricted to
English, French, German, Italian and Spanish. Only on a rare occasion can a
decision regarding working language(s) be found, whereas it is obvious from
recruitment requirements and website information that English has become
the main working language of the vast majority of these EU agencies.
7. Lack of formal decisions with regard to language arrangements

EU language arrangements are largely implicit and not based on formal
decisions. The clear lack of transparency appears as highly problematic.

The lack of formal, explicit decisions concerning language arrangements was
also criticized by the Court of Justice in a recent landmark case regarding
recruitment policy. The Court imposed stricter respect for multilingualism
in these selection procedures and set limits to a recruitment policy in
three languages only, stressing that the EU institutions concerned never
adopted rules of procedure in accordance with article 6 of Regulation
1/1958 nor had taken other measures laying down criteria governing the
choice of a language.

The lack of formal decisions could therefore lead to serious legal problems
in the future, not only with regard to recruitment, but also, for instance,
concerning public consultations, where the European Ombudsman criticised
the absence of a clear language pattern.

The same is true for tenders, where often only a limited number of
languages may be used, leading to a clear disadvantage for certain
companies not having those languages and thus facing important translation
costs.

8. Questionable and non-transparent criteria used for the choice of
restricted language policies

Transparency is also lacking in the justification of restricted language
policies, particularly in the criteria on the basis of which some languages
are selected and others not. These criteria are not merely political, as
the legal equality of languages allows only for restricted language regimes
provided that the choice of languages is objectively justified by specific
operational needs and is, furthermore, proportionate.

Generally speaking, the basic issue as to why not one common language is
used, for the sake of limiting costs and efficiency, is insufficiently
addressed.

By contrast, in regard to language arrangements for the European Patent
with unitary effect (EU Patent) and a unified patent litigation system,
more objective criteria were used. For the first time ever, the European
Commission included impact analysis reports concerning the translation
arrangements in its draft proposal.

Yet, 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. However, the assessment could easily have led to alternative
language regimes, using only English, or, alternatively, English and German.
9. The absence of language teaching priorities: a counter-intuitive strategy

The application of the diversity principle has led the EU to adopt a
multilingualism agenda, which is essentially a language learning policy,
setting as a benchmark that all EU citizens should learn at least two
languages in addition to their native tongue. The scope of foreign
languages which may be chosen is broad, and not limited to EU Treaty or
official languages, but also includes regional and minority languages, as
well as languages of migrant communities.

This policy is clearly flawed by the absence of language teaching
priorities. The only indication in this context is a negative one, stating
that the teaching of English is not enough.

The mother tongue plus two policy is indeed meant to serve the interest of
linguistic diversity in forming a counterweight for the predominance of
English, taken by most Europeans as their first and, in many cases, only
foreign language.

Yet, the teaching of at least one lingua franca could greatly advance other
EU aims, such as, above all, market integration.

In practice, the policy seems to favour in the first place the teaching of
other major languages.

Last but not least, the benchmark seems unrealistic. In 2013, the
Commission admitted that only 42% of tested pupils could be considered
independent users in their first foreign language, and that a large number
of pupils (14%) did not even achieve the level of basic users. The data
collected by Eurostat also show that the education systems of the EU fall
short of the objective of teaching two or more foreign languages: only 40%
of pupils in lower secondary education get such language teaching. Quite a
number of EU Member States even show a significant drop of people speaking
at least two foreign languages. EU Member States may actually prefer
students to learn one foreign language well, rather than two at an
intermediate level.
10. A common language?

Objectives set in the internal market and in the area of freedom, security
and justice do, in fact, require a common tongue. The reluctance of the EU
to launch a debate on this issue could be detrimental to the European
project.

[image: EU Language Law]

Author: Stefaan van der Jeught  (Oct 2015)
Binding Paperback, 303p
ISBN 9789089521729; ISBN Ebook 9789089521736
Price €64

The book is available at Europa Law Publishing
<http://www.europalawpublishing.com/NL/webshop/0/0/1/80343> or from good
booksellers everywhere. For orders in the USA: ISBS, International
Specialized Book Services, 920 NE 58th Avenue, Suite 300, Portland, OR
97213-3786,
phone toll-free within North America 1-800-944-6190, fax 1-503-280-8832,
www.isbs.com, orders at isbs.com

http://slator.com/features/what-you-need-to-know-about-eu-language-law/

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