Beyond Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community Law

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00496.x
• Author: Theodor Schilling
• Published date: 01 January 2010
• Date: 01 January 2010

eulj_49647..66

Beyond Multilingualism: On Different

Approaches to the Handling of Diverging

Language Versions of a Community Law

Theodor Schilling*

Abstract: This article deals with a problem created by the EU’s multilingualism, the

fallibility of translators and the ruses of politicians: for different reasons, it is quite

common that equally authentic language versions of a Community law have different

meanings if taken on their own. While the ECJ’s uniform interpretation approach to this

problem, which must be seen as required under the non-discrimination principle, has

permitted equitable results in those cases decided by the ECJ, it would not be adequate for

the simplest type of case, ie that a citizen has every reason to trust her own language

version of a law. In such a case, her legitimate expectations in the equal authenticity of

that version requires protection. De lege lata the article therefore proposes, in the interest

of generally equitable solutions, a balancing, in the individual case, of the protection of

legitimate expectations and the non-discrimination principle. De lege ferenda it proposes

a more radical solution, ie that there be only one authentic version of every Community

law.

I Introduction

The destruction of the tower of Babylon led, or so we are told,1to the emergence of

different linguistic groups. Meant to be a punishment for mankind for having had the

audacity to try to erect that tower, mankind has fervently embraced that punishment,

ie the resulting linguistic differences. Indeed, legal translation which is in part at the

basis of the problem to be discussed must have started shortly thereafter: the ancient

story of the goring ox and his different incarnations in different near-Eastern legal

systems2would not have been possible without the translation of laws. At the same

time, the example shows that a translation, for whatever reasons, may differ quite

considerably from the original.

To return to the question of punishment, it may well be considered that not so much

the linguistic differences as such but the fervency of their embrace by mankind has been

* Professor, Humboldt University Berlin, Faculty of Law; Universitatea de Vest din Timisoara, Faculty of

Political Sciences, Philosophy and Communication Sciences, DAIBES.

1Genesis 11:7.

2Told eg by Alan Watson, Legal Transplants (Scottish Academic Press, 1974), 22–24.

European Law Journal, Vol. 16, No. 1, January 2010, pp. 47–66.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

the real punishment.3The point is particularly relevant to the EU whose multilingual-

ism4has been described as part of its self-portrayal.5

Multilingualism has different levels which should be discussed applying different

criteria.6Among those levels are the respective language regimes applicable to admin-

istrative and court proceedings involving citizens and EU institutions, whose discussion

should be guided by criteria taken from human and minority rights, as well as those

applicable to parliamentary procedures and consultations between representatives of

Member States whose discussion should be guided rather by aspects of the equality of

states.7This article will mainly discuss the multilingual publication of legal texts as it

affects the citizen. In this context, the EU aims ‘to give citizens access to European

Union legislation, procedures and information in their own languages’.8The question

will be whether the very effort to legislate multilinguistically is self-defeating, by neces-

sity or at least as practiced by the EU,9more exactly, whether the multilingualism as

practiced on this level by the EU is compatible with the rule of law requirements of

accessibility of a law and foreseeability of its effects as developed by the Court of

Human Rights under the (European) Convention for the Protection of Human Rights

and Fundamental Freedoms (ECHR).10 This article will deal with those requirements,

contrast them with certain countervailing aspects def‌ined by the jurisprudence of the

ECJ on the uniform interpretation of Community law which will be identif‌ied as

requirements of the non-discrimination principle, and discuss how to balance those

partly contradictory requirements. In conclusion, it will claim that multilingualism as

3Indeed, this theme is clearly in sight in Genesis 11:6.

4The EU’s language regime is, from a comparative point of view, wholly exceptional. Among multilingual

states, only the Republic of South Africa comes close, having 11 off‌icial languages. However, there the

government is only obliged to use two of them; cf Constitution of the Republic of South Africa 1996,

adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly, Act 108

of 1996, ISBN 0-620-20214-9, available at http://www.polity.org.za/html/govdocs/constitution/

saconst.html, Languages Sec 6. Further comparative references in T. Schilling, ‘Eine neue Rahmenstrat-

egie für die Mehrsprachigkeit. Rechtskulturelle Aspekte’, (2007) Zeitschrift für Europäisches Privatrecht

754, 761 et seq.

5A. von Bogdandy, ‘Die Europäische Union und das Völkerrecht kultureller Vielfalt—Aspekte einer

wunderbaren Freundschaft’, in G. Nolte et al (eds), Pluralistische Gesellschaften und Internationales

Recht, (2008) 43 Berichte der Deutschen Gesellschaft für Völkerrecht 69. According to C. von Bar et al

(eds), Principles, Def‌initions and Model Rules of European Private Law. Draft Common Frame of Refer-

ence. Outline Edition (Sellier, 2009) (DCFR), Intr § 19, ‘the preservation of cultural and linguistic diversity

is an all-important principle, vital to the very existence of the Union’. According to Intr § 16, it is one of

the ‘“overriding principles” of a high political nature’, on a par with, eg the protection of human rights

and the promotion of the internal market. The exact meaning of this diversity however remains undef‌ined.

6Cf T. Oppermann, ‘Das Sprachenregime der Europäischen Union—reformbedürftig? Ein Thema für den

Post-Nizza-Prozeß’, (2001) 4 Zeitschrift für Europarechtliche Studien 1, 17 et seq.

7Some of those levels I have discussed in another article; cf T. Schilling, ‘Language Rights in the EU’,

(2008) 9 German Law Journal 1219 et seq.

8Communication to the Council, the European Parliament, the European Economic and Social Commit-

tee and the Committee of the Regions: A New Framework Strategy for Multilingualism, COM(2005)

596 f‌inal of 22.11.2005, available at http://europa.eu/languages/servlets/Doc?id=913, pt I.2, ‘What is

Multilingualism?’.

9Also cf Proposals from the Group of Intellectuals for Intercultural Dialogue set up at the initiative of the

European Commission, A Rewarding Challenge. How the multiplicity of languages could strengthen

Europe, 2008, available at http://ec.europa.eu/education/policies/lang/doc/maalouf/report_en.pdf, 3: ‘[I]n

any human society linguistic...diversity has both advantages and drawbacks, and is a source of

enrichment but also a source of tension’.

10 Of 4 November 1950, UNTS vol 213 221; ETS no 5.

European Law Journal Volume 16

48 © 2010 Blackwell Publishing Ltd.