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Multilingualism and Multijuralism: Assets of EU Legislation and Adjudication?

Published online by Cambridge University Press:  06 March 2019

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.

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Articles
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Some Member States have more than one legal system, the best-known example being the United Kingdom.Google Scholar

2 To wit common law, Romanistic legal family, Germanic legal family: Konrad Zweigert & Hein Koetz, Introduction to Comparative Law 68 (1998).Google Scholar

3 But see European Commission Directorate General for Translation [EC-DGT]: Réka Somssich, Study on Lawmaking in the EU Multilingual Environment 2 (2010), available at http://bookshop.europa.eu/isbin/INTERSHOP.enfinity/WFS/EU-Bookshop-Site/en_GB/-/EUR/ViewPublication-Start?PublicationKey=HC3110678 (last accessed: 11 July 2001), which does seem not even to distinguish between the two concepts.Google Scholar

4 Caussignac, Gérard, Empirische Aspekte der zweisprachigen Redaktion von Rechtserlassen (Empirical Aspects of the Editorial Staff of Bilingual Law Decrees), 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) 157, 173 (F. Muller & I. Burr eds., 2004); Robinson, William, How the European Commission Drafts Legislation in 20 Languages, 53 Clarity 4, 6 (2005).Google Scholar

5 Cf. e.g. Robinson, William, Manuals for Drafting European Union Legislation, 4 Legisprudence 129, 131 (2010).Google Scholar

6 On different meanings of multijuralism, see Breton, Albert, Anne Des Ormeaux, Katharina Pistor and Pierre Salmon, Multijuralism Manifestations Causes And Consequences 1-101 et seq. (2009).Google Scholar

7 In contrast to Breton et. al., id., I consider the influence of the “subsets” on the whole, and not vice versa. Google Scholar

8 Cf. Pozzo, Barbara, Multilingualism as a “value” in the European Union, in The Multilanguage Complexity of European Law: Methodologies in Comparison 133 134 (Gianmaria Ajani, D. Tiscornia & G. Sartor eds., 2007).Google Scholar

9 Id. at 133 & 134. The example provided by Pozzo is rather an example for divergent language versions, and therefore, of the problems caused by multilingualism.Google Scholar

10 Cf. e.g. Watson, Alan, Legal Transplants passim (1974).Google Scholar

11 Cf. e.g. Häberle, Peter, Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat. Zugleich zur Rechtsvergleichung als “fünfter” Auslegungsmethode (Basic Legal Validity and Interpretation of Fundamental Rights in the Constitution State. At the same time, the Law as a “Fifth” Method of Interpretation), Juristenzeitung 913 (1989); see Advocate General Jacobs, Opinion discussing the US “essential facilities” doctrine: Case C-7/97, Oscar Bronner GmbH v. Mediaprint 1998 E.C.R I-7791, paras. 46-47.Google Scholar

12 Of whom it has been said by Bernhard Großfeld (quoted from memory), rather skeptically, that she is considered an expert on foreign law at home and an expert on her domestic law in foreign parts.Google Scholar

13 The authentic language need not be the same in the case of all laws of a multilingual system; see Theodor Schilling, Beyond Multilingualism. On Different Approaches to the Handling of Diverging Language Versions of a Community Law, 16 European Law Journal (ELJ) 47, 64 (2010).Google Scholar

14 In the EU, all 23 language versions of a law are equally authentic. Cf. for the founding Treatie, the Treaty on European Union (EUT) art. 55 and Treaty on the Functioning of the European Union (TFEU) art. 358, 2010 O.J. (C83), 1; for secondary legislation e.g. ECJ, Case 283/81, CILFIT and Lanificio di Gavardo v. Ministero della Sanità, 1982 E.C.R 3415, para. 18.Google Scholar

15 Cf. text at infra note 79.Google Scholar

16 Schilling, , supra note 13, 64.Google Scholar

17 Id. at 52.Google Scholar

18 ‘Equivalence at any linguistic level is … statistically rare. Full equivalence at the textual level understood as the sum total of the narrower equivalences is thus even more problematic': B. Lewandowska-Tomaszczyk, Semantics and Translation, in Übersetzung — Translation — Traduction. An International Encyclopedia of Translation-Studies 1, 301, 310 (Harald Kittel, Juliane House & Brigitte Schultze eds., 2004).Google Scholar

19 There are numerous examples for this in EC-DGT, supra note 3, at 97-131.Google Scholar

20 Caussignac, , supra note 4, at 175; Robinson, , supra note 4, at 6. The same is true of two positive effects of European multilingualism identified by EC-DGT, supra note 3, but extraneous to the present contribution, i.e. the claim “that it has increased in many Member States the state's awareness regarding language issues in general (48) and the contribution to the development of national languages (79-83); EC-DGT, supra note 3, at 152: “The fact that multilingualism is something very beneficial is well shown by the institutional processes and the legal linguistic data we managed to explore.”Google Scholar

21 Caussignac, , supra note 4, at 175; Robinson, , supra note 4, at 6.Google Scholar

22 Pozzo, , supra note 8, at 143.Google Scholar

23 Cf. Schilling, , supra note 13, at 65 et seq. Google Scholar

24 Schweizer, Rainer J., Sprache als Kultur- und Rechtsgut (Language as Cultural and Legal Interest), 65 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (VVDStRL) 360, 379 (2006).Google Scholar

25 Wallow, Astrid, Herausforderung zur begrifflichen Reflexion: Recht und Sprache aus der Sicht des Rechtsvergleichers (Challenge to Conceptual Reflection: Law and Language From the Perspective of Comparative Law), in Law and Language — Recht und Sprache 3, 8-11 (Thomas Lundmark & Astrid Wallow eds., 2006); Pozzo, Barbara, Multilingualism, Legal Terminology and the Problems of Harmonising European Private Law, in Multilingualism and the Harmonisation of European Law 3, 6-10 (Barbara Pozzo & Valentina Jacometti eds., 2006).Google Scholar

26 Caussignac, , supra note 4, at 170; Robinson, , supra note 4, at 154.Google Scholar

27 Caussignac, , supra note 4, at 177.Google Scholar

28 Cf. ECJ, Case C-36/98, Kingdom of Spain v. Council of the European Union, 2001 E.C.R I-779, para. 47 et seq. Google Scholar

29 It is otherwise if the non-authentic version is the version in the drafting language and at the same time the basis of the decision, while the authentic version is but a translation of the former. Examples for this constellation are the decisions of the ECJ where the original working language version is dubbed a translation from the language-of-the-case version, while the reality is the other way around; cf. text at infra note 80. “There are many parallels at the Commission in individual decisions where the texts all pass through all the internal procedures in English only. At the very end, they are translated into the language of the addressee of the decision and checked by the lawyer-linguists. Then the version in the language of the addressee is the authentic version. It happens too often that because of translation mistakes the version in the authentic language has to be corrected while the English version does not.” Communication by William Robinson, on file with the author.Google Scholar

30 Cf. e.g. Act Concerning the Conditions of Accession of the Czech Republic Art. 58, 2003 O.J. (L236), para. 33.Google Scholar

31 Case C-161/06, Skoma-Lux sro v. Celní reditelství Olomouc, 2007 E.C.R I-10841, para. 19, shows the way such translations come into being.Google Scholar

32 Cf. the solution chosen in two Hong Kong cases referred to in: Deborah Cao, Inter-lingual Uncertainty in Bilingual and Multilingual Law, 39 Journal of Pragmatics 69, 80 (2007).Google Scholar

33 See the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S 331.Google Scholar

34 Kuner, Christopher B., The Interpretation of Multilingual Treaties: Comparison of Texts versus the Presumption of Similar Meaning, 40 International and Comparative Law Quarterly (ICLQ) 953, 954 (1991).Google Scholar

35 Contra id. at 962.Google Scholar

36 Case 283/81, CILFIT and Lanificio di Gavardo v. Ministero della Sanità, 1982 E.C.R 3415, para. 16.Google Scholar

37 Which indeed they ought to apply, for rule of law reasons, in certain circumstances; cf. Schilling, supra note 13, at 58.Google Scholar

38 Case C-36/98, Kingdom of Spain v. Council of the European Union, 2001 E.C.R I-779, para 47. However, according to Advocate General Jacobs’ Opinion in case C-338/95, S.I. Wiener v. Hauptzollamt Emmerich, 1997 E.C.R I-6495, para 65, delivered at a time when the EU had only 11 official languages, ‘reference to all the language versions of Community provisions is a method which appears rarely to be applied by the Court of Justice itself, although it is far better placed to do so than the national courts.'Google Scholar

39 Robinson, , supra note 4, at 5. Caussignac, supra note 4, at 170, proposes the stage of the design of a law, before even the draft is tackled.Google Scholar

40 Cf. e.g. ECtHR, Landvreugd v. The Netherlands, Appl. No. 37331/97, Jun. 6, 2000, para 54 (unreported).Google Scholar

41 Kohler, Christian, Le droit de l'Union européenne face à la diversité culturelle: tensions et solutions (The Law of The European Union, Face of Cultural Diversity: Tensions and Solutions), 62 Revue Hellénique de Droit Internationale (RHDI) 473, 482 (2009).Google Scholar

42 Cf. Schilling, Theodor, Language Rights in the European Union, 9 German Law Journal (GlJ) 1219, 1220-1225 (2008).Google Scholar

43 Cf. supra note 14.Google Scholar

44 Cf. Treaty on the Functioning of the European Union, art. 342, Mar. 30, 2010, 2010 O.J. (C383); Council Regulation, art. 1(1) the 1958 Regulation No. 1 Determining the Languages To Be Used By the European Economic Community, 1958 O.J. English special ed., Ser. 1 Chap. 1952–58, 59, (with later amendments), as amended from time to time; see supra, note 14.Google Scholar

45 Most decisions of the ECJ and the General Court (but cf. infra note 80) are in fact published in all the official languages: Instructions to the Registrar of the Court of Justice Art. 24, 1974 O.J. (L350) 33, as amended from time to time, which refers to Regulation No. 1., art. 1, 18 (4) of the Instructions to the Registrar of the General Court of 5 July 2007 as amended on 17 May 2010, 2010 O.J. (L170) 53, requires the Registrar to ensure that the case-law of the Court is made public in accordance with any arrangements adopted by the Court.Google Scholar

46 As the Council expressly acknowledges, “for practical reasons, there have always been limits on multilingualism at the Council”: Application of Language Rules at the Council, available at http://www.consilium.europa.eu/showpage.aspx?id=1255@lang=en (last accessed: 31 March 2011) — Of course, those practical considerations are wholly legitimate. Indeed, as the internal side is not determined by law, but by an attempt at good governance, it is not possible to identify a legal rule against which to gauge the solutions found by the institutions. To put it differently, the dichotomy lawful/unlawful does not apply to the internal side of the EU language regime. Rather, it can be said that those solutions should respect, as much as possible, certain desiderata, which reflect aspects of good governance.Google Scholar

48 As the knowledge of French as a foreign language is generally in decline, this appreciably reduces the pool of eligible candidates, and potentially disqualifies the candidate with the strongest judicial credentials.Google Scholar

49 Art. 17 (2) EUT; Robinson, , supra note 5, at 130.Google Scholar

50 See Robinson, supra note 5, at 131. The following are recent percentages given for French drafting: Robinson, supra note 5, at 131: 15%; EC-DGT, supra note 3, at 89: 12% (2008); Robinson, , supra note 29: 10%.Google Scholar

51 Robinson, , supra note 4, at 4; Robinson, , supra note 5, at 131. (Provides more details on ‘Drafting within the Commission')Google Scholar

52 Rules of Procedure of the Commission art. 17(1), (2), (3), 2010 O.J. (L55) 61; Robinson, , supra note 5, at 133.Google Scholar

53 Rules of Procedure of the Commission art. 17(5), 2010 O.J. (L55): this expression signifies “the official languages of the European Union … in the case of instruments of general application”.Google Scholar

54 A detailed description of the Commission lawmaking procedures under multilingualism aspects is in: EC-DGT, supra note 3, at 30-36.Google Scholar

55 EC-DGT, supra note 3, at 20.Google Scholar

57 Cf. text at, infra note 108.Google Scholar

58 A detailed description of the procedure under multilingualism aspects is in: EC-DGT, supra note 3, at 20-30.Google Scholar

59 Cf., for Council positions, Rule 61 (1) of the Rules of Procedure of the European Parliament, 7th parliamentary term — July 2010, available at http://www.europarl.europa.eu (last accessed: 31 March 2011). For implementing measures envisaged by the Commission, which fall under the regulatory procedure with scrutiny, cf., to the same effect, Rule 88 (4) (a).Google Scholar

60 Rules of Procedure of the European Parliament, 156(6), id. Practice appears to differ from this rule and generally to be content with either a French or an English version.Google Scholar

61 Cf. Id. at 195 (1).Google Scholar

62 On multilingualism before the EP: Id. at 23(9), 29, 42 (3), 113(5), 123(1), 142(2), 181, 185(7), 201(5), 146.Google Scholar

63 As the acting persons in these procedures are the members of the EP this respect for the equality of Member State languages on the internal side of the language regime was to be expected according to the general rule: cf. text at supra note 47.Google Scholar

64 While the Council's Rules of Procedure (Council Decision of 1 December 2009 adopting the Council's Rules of Procedure, 2009 O.J. (L325) 35, are not particularly clear as concerns the use of languages — art. 14 refers to unspecified “language rules” — it follows e contrario from the Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union, 2005 O.J. (C148) 1, part b, that speeches at Council meetings in any of the official languages of the EU are actively and passively interpreted into the other official languages: Application of Language Rules at the Council, supra note 46.Google Scholar

65 Council's Rules of Procedure, id., Annex IV (“Referred to in art. 16”), pt. 1(h)(n 1): “The Council confirms that present practice whereby the texts serving as a basis for its deliberations are drawn up in all the languages will continue to apply.”Google Scholar

66 As the acting persons in these procedures are the Member States’ representatives in the Council this apparent respect for the equality of Member State languages on the internal side of the language regime was to be expected according to the general rule, Cf. text at supra note 47: But “[f]or communications within the institution … the most widely understood languages are used; the same applies for work involving civil servants and experts from the Member States,” see the Application of Language Rules at the Council, supra note 46.Google Scholar

67 EC-DGT, supra note 3, at 20.Google Scholar

68 Statute of the Court of Justice (Protocol on the Statute of the Court of Justice) art. 64, 2010 O.J. (C83) 210: “[t]he rules governing the language arrangements applicable at the Court of Justice of the European Union shall be laid down by a regulation of the Council acting unanimously”. However, “[u]ntil those rules have been adopted, the [relevant] provisions of the Rules of Procedure of the [ECJ] … shall continue to apply.”Google Scholar

69 This results clearly from the “Notes for the guidance of Counsel”, published by the ECJ and available at www.curia.europa.eu/en/instit/txtdocfr/autrestxts/txt9.pdf (last accessed: 11 July 2011). According to point A.3 -Use of languages, 5th para. of those notes, “At present, the working language of the Court is French.”Google Scholar

70 Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991 art. 29(2), 1991 O.J. (L176) 7, (as amended from time to time, with the latest amendment 23 March 2010, 2010 O.J. (L92) 12; consolidated version available at 2010 O.J. (C177) 1.Google Scholar

71 Rules of Procedure art. 29(3) (Consolidated version).Google Scholar

72 Rules of Procedure art. 29(2) (Consolidated version).Google Scholar

73 Statute of the Court of Justice art. 23, supra note 68, para. 1.Google Scholar

74 Cf. Notes for the Guidance of Counsel, supra note 69.Google Scholar

75 Statute of the Court of Justice art. 20, supra note 68, para. 4.Google Scholar

76 Rules of Procedure art. 29(5) (Consolidated version): “the Judge-Rapporteur … in his report for the hearing … may use one of the [official] languages … other than the language of the case.”Google Scholar

78 Opinions of the court under Treaty of the Functioning of the European Union [TFEU] art. 218(11) are authentic in all the official languages.Google Scholar

79 Notwithstanding this, the ECJ generally will consider them, in later proceedings, in its working language, i.e. French. Still, in rare cases it may be convenient for the Court to ground a new judgment on the language-of-the-case version, rather than the French version, of a former judgment.Google Scholar

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

82 An example is given at infra note 123.Google Scholar

83 Mummery, John, Links with National Courts, in Making Community Law. The Legacy of Advocate General Jacobs at the European Court of Justice 100, 109 (Philip Moser & Katrine Sawyer eds., 2008).Google Scholar

84 Roth, Alexander, Die “Europäisierung” des rumänischen Rechts (The “Europeanization” of Roman Law), Berlin Eastern European Info 91, 92 available at www.oei.fu-berlin.de/media/publikationen/boi/boi_14/29_roth.pdf (last accessed 11 July 2011), claims that comparative lawyers and the legislature, by looking at Eastern European States, could occasionally find surprising, interesting and very helpful suggestions for our own legal systems.Google Scholar

85 Cf. Streinz, Rudolf & Leible, Stefan, Die Zukunft des Gerichtssystems der Europäischen Gemeinschaft — Reflexionen über Reflexionspapiere (The future of the Judicial System of the European Community - Reflections on Reflection Papers), Europäisches Wirtschafts- und Steuerrecht (EWS) 1, 7 (2001).Google Scholar

86 See Kahl, Wolfgang, Sprache als Kultur- und Rechtsgut (Language as a Cultural and Legal Interest), 65 Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (VVDStRL) 386, 451 (2006).Google Scholar

87 On whom cf. text at infra note 113.Google Scholar

88 Robinson, , supra note 4, at 5.Google Scholar

89 Cf. e.g. Advocate General Lagrange, Opinion 28, 29 and 30/62, Da Costa en Schaake et al. v. Nederlands Belastingsadministratie, 1963 E.C.R 31, 40. (Reviewing the principles common to the Member States which govern res judicata).Google Scholar

90 Cf. ECJ, Case 29/69, Erich Stauder v. Stadt Ulm, Sozialamt, 1969 E.C.R 419; ECJ, Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R 1125; ECJ, Case 4/73, J. Nold Kohlen- und Baustoffgroßhandlung v Ruhrkohle Aktiengesellschaft, 1974 E.C.R 491; ECJ, Case 44/79, Liselotte Hauer v Land Rheinland-Pfalz, 1979 E.C.R 3727.Google Scholar

91 ECJ, Case 47/07, Masdar (UK) Ltd. v. Commission of the European Communities, 2008 E.C.R I-9761, para. 44.Google Scholar

92 Cf. text at supra note 39.Google Scholar

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

94 The consequences of this impossibility might be mitigated in the long run in this way that concepts of EU law, through constant use and autonomous interpretation, would gain their own uniform contexts, independent of the respective language versions, throughout the EU. This is considered a precondition of greater uniformity of EU law: Gianmaria Ajani & Piercarlo Rossi, Multilingualism and the Coherence of European Private Law, in Multilingualism and the Harmonisation of European Law, supra note 25, at 79, 8384. But in spite of efforts of the Commission going in that direction — on the question of terminologisation of EU law: Ralph Christensen and Friedrich Müller, Mehrsprachigkeit oder das eine Recht in vielen Sprachen (Multilingualism, Or the One right in Many Languages), in Rechtssprache Europas. supra note 93, at 9, 13; Pozzo, , supra note 8, at 136 — we are still far from reaching that aim; Ajani/Rossi correctly see this as a “long term project.” Also, such an approach would fail to achieve the specific advantages a parallel drafting might offer.Google Scholar

95 Robinson, , supra note 5, at 153, proposes to consider ‘involving the [Commission's] legal revisers at the actual conception stage of all major new legislative initiatives'; EC-DGT, supra note 3, at 67-69, undertakes the demonstration of “the possible differences and similarities between the different forms of legal translation and multilingual drafting.”Google Scholar

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, 2122.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