Saturday, January 14, 2006



At the European Court of Justice this week, I worked on a case concerning the proper interpretation of a phrase used in the legislation governing proprietary plant varieties. Farmers are allowed to save seed from their crops for sowing on their own farms provided they pay a fair fee to the breeder of the plant variety in question. What that fee should be is not specified, only that it must be 'sensibly lower' than the royalty element in the price of new seed of the same variety.

'Sensibly lower'??

In the French, unsurprisingly, 'sensiblement inférieur'. In German, 'deutlich niedriger'. In proper English, therefore, something like 'appreciably lower'.

How did such a glaring gallicism find its way into the written law of English-speaking Europe?

No doubt some brain-dead translator or over-confident non-native was taken in by the faux ami, but how incredible that nobody seems to have picked up on it thereafter.

In the UK parliamentary debate on related national legislation, the expression is commented on by one member:
'The Bill uses the term "sensibly lower" in relation to royalty rates--a curious bit of Euro-speak arrived at during the discussions on the trade agreements'.
Euro-speak indeed. As is so often the case, alleged eurospeak turns out to be simply the hamfisted English of a non-native (or gone-native).

Another member assumes the phrase to mean 'suitably lower', as a reasonable person would, but that of course is not the same sense as the other languages.

In the ECJ case, all the parties were German and there were no British or Irish judges sitting so the dubious English expression did not come under scrutiny. But it may well be only a matter of time. The whole question of royalties on farm-saved seed seems to generate a lot of litigation.

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