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

AuthorTheodor Schilling
Published date01 January 2010
Date01 January 2010
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
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
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, pt I.2, ‘What is
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, 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.

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