Working Languages

On the subject of the previous post, the EUObserver report (no longer available apparently but echoed by the TimesOnline) contains this:

Officials said that currently, the language having ultimate legal primacy is the text in which the legal act was originally drafted

EurActiv has the same impression:

At present, standard practice dictates that any anomalies or confusions be checked against the language in which the document was written

If that were so the French-first campaign would be somewhat redundant since so much of EU law seems to have started life in French. But in fact all the languages carry equal weight and there is no rule that the language of an original draft will prevail.

Where conflicts arise, the European Court of Justice may consider several different language versions but in practice this happens less often than one might suppose, given the multilingual nature of EU legislation. That is because the ECJ tends to favour a purposive ('teleological') over a literal interpretation, in contrast to the approach traditionally taken by the courts in common-law countries.

The different language versions of a Community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (R. v Bouchereau)

The contrast between the two approaches was highlighted in a case some years ago when the Irish High Court saw its interpretation of a provision of European law effectively overturned by the ECJ. A European directive on equal pay provided that women should receive equal pay for work of equal value. The facts of the case were that the work done by the female plaintiffs was actually of greater value than that of their male colleague and the High Court accordingly held, on a literal interpretation, that their situation was not within the scope of the relevant provision and they were not therefore entitled to equal pay - although they would have been so entitled had their work been only of equal rather than of greater value.

The matter was referred to the ECJ which looked to the purpose rather than the literal meaning of the provision in question and ruled that 'equal value' must be interpreted as meaning something like 'at least equal value', effectively inserting words of its own into the directive.

In England, too, the ECJ's approach was initially found rather novel. Here's what Lord Denning had to say:

They adopt a method which they call in English strange words – at any rate they were strange to me – the 'schematic and teleological' method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit – but not the letter – of the legislation, they solve the problem by looking at the design and purpose of the legislature – at the effect which it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation?

Not everybody was as sanguine, however. Professor Hartley, for example, in The Foundations of European Community Law, is not at all impressed with the approach taken in the case of Les Verts v European Parliament, where the ECJ held that it had jurisdiction to review the EP's decisions even though the EP is not one of the institutions expressly mentioned in the relevant Treaty provision:

The logic of this ruling should be fully understood: what the Court is doing is to say that the acts of the Parliament ought to be reviewable; therefore, they are reviewable. This logic (...) ignores the distinction between what the law ought to be and what it is, a distinction which is fundamental to the Western concept of law.

May depend on how far West you mean by Western, of course.