Working Languages

When Wales are playing in the Six Nations rugby tournament it can be difficult keeping up with all the Joneses, Williamses etc. There are actually six players called Jones in the current Welsh squad. What a contrast with France. Its players' identifiers are never less than unique. In fact it is rare to come across the same French surname twice in any circumstances.

And this is not just because France is big and Wales is small. Take Spain: you won't be long there before you come across a Garcia, a Lopez, a Fernandez etc. In fact Garcia is actually among the top twenty surnames in France.

I'm not sure how much surname frequency tells us about history and society but it is striking that in Italy two of the top 10 surnames are Esposito and Colombo, both of which apparently mean 'abandoned child'.

Even more intriguing is the situation in Hungary. No fewer than 6 of the 22 most common Hungarian surnames denote foreign nationalities:

3. Tóth (Slovak)
5. Horváth (Croat)
9. Németh (German)
18. Oláh (Romanian)
20. Rácz (Serb)
22. Török (Turk)

This might be taken to bespeak a highly cosmopolitan population. Yet according to survey data Hungary has the lowest level of foreign language proficiency in the whole of the EU.

Even worse than Britain. There, according to the BBC

Experts blame a misplaced belief that "everyone else" speaks English, while in the past - as an island-nation - we have not been exposed to other languages like countries with land borders

If those were the relevant factors Hungary is surely the last place you'd expect to find so many monoglots.

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.

Considerable coverage was given recently to efforts by the Committee for the Language of European Law to promote French as the primary language of EU law. Here, for example.

On the one hand, it's a daft campaign and the proposal itself a non-starter. Purely in the interests of credibility, the committee should surely have chosen as its frontman some one other than Maurice Druon, described as the secretary of the Académie Francaise. It is hard to imagine that the holder of that office could be more concerned by the interests of legal certainty than the fortunes of the French language.

In other ways, though, the proposal has a certain pedigree. French is already, by convention, the internal working language of the European Court of Justice. The judges there conduct their deliberations in French (preferring to dispense with interpreters for some unthinkable reason) and French is the only language - other than the language of the particular case - in which all documents are made available.

French was also the sole authentic language of the Treaty establishing the European Coal and Steel Community, the forerunner of the EU. There is some evidence that it could have acquired the same status in the Treaty of Rome were it not for opposition from the Belgians, who had domestic linguistic issues to consider.

And going further back in time, the idea of French as the language of the law may - paradoxically - owe its origins to an English rather than a French tradition.

French clung on in the English courts right into the eighteenth century - long after it had been supplanted by English in other walks of life. Roger North, who lived until 1734, was of the opinion that

the Law is scarcely expressible properly in English

There is even an argument that it was thanks to this use of French that the distinctive character of the Common Law was preserved in the face of continental influences:

When the history of English law is contrasted with the history of its next of kin, the existence of law French is too often forgotten. It is forgotten that during the later middle age English lawyers enjoyed the inestimable advantage of being able to make a technical language. And a highly technical language they made.... Let us dwell for a moment on an important consequence. We have known it put by a foreigner as a paradox that in the critical sixteenth century the national system of jurisprudence which showed the stoutest nationalism was a system that was hardly expressible in the national language. But is there a paradox here? English law was tough and impervious to foreign influence because it was highly technical, and it was highly technical because English lawyers had been able to make a vocabulary, to define their concepts, to think sharply as the man of science thinks. It would not be a popular doctrine that the Englishry of English law was secured by la lange francais qest trope desconue; but does it not seem likely that if English law had been more homely, more volksthümlich, Romanism would have swept the board in England as it swept the board in Germany?

In an earlier post, I discussed the difficulties of several recently joined EU member states with the official spelling of the word ‘euro’.

Now two of the new member states that are set to join the eurozone itself have complained of a difficulty of a carto- rather than an ortho-graphical nature with the notes and coins their citizens will soon be using.

The FT’s Observer column explains:

The bid by Cyprus and Malta to join the eurozone has created headaches in Frankfurt, as the design bods behind the single currency’s notes and coins grapple with an embarrassing dilemma.

Euro bank notes and coinage feature a map of the continent, which includes Britain (a non-euro member) and Turkey, which geographically is largely situated in Asia. But strangely they do not feature either Cyprus or Malta. The leaders of the two Mediterranean islands, which are expected to become the 14th and 15th countries to use the euro on January 1, have registered their concerns with the European Central Bank.

Lawrence Gonzi, Malta’s prime minister, tells Observer: “We’ll be included on the map in the next issue of notes and coins. Don’t worry.”

No doubt there are people out there who would regard including Malta and Cyprus on a map of Europe as “political correctness gone mad”.