The future of the English language in the European institutions: a legal perspective
A far less debated and perhaps more unexpected issue has been raised by the United Kingdom’s likely exit from the European Union: what shall be the future of the English language in the European institutions? This article proposes to tackle this issue from a legal perspective, though the question is practically unlikely to be merely one of an administrative character. The central claim is that the permanence of English as an official language of the EU will probably be subject to a decision of the ECJ. The article will also stress the large autonomy of the institutions themselves regarding their internal linguistic regime, meaning that a strong political willingness not to use English could well work either separate or inclusive of legal considerations. The article will then dive into considerations of how choice of language may impact relations in Europe, arguing that it could be a source of further divide between East and West in the coming multi-speed Europe.
A far less debated and perhaps more unexpected issue has been raised by the United Kingdom’s exit from the European Union, which will become effective likely two years after the triggering of Article 50 of the Lisbon Treaty: what shall be the future of the English language in the European institutions? I propose to tackle this issue from a legal perspective, though I am well aware that the developments of a language are rarely simply matters of administrative fiat. My argument is that the permanence of English as an official language of the EU will probably be subject to a decision of the ECJ. I will also stress the large autonomy of the institutions themselves regarding their internal linguistic regime, meaning that a strong political willingness not to use English could well work. This, I will conclude, may be a source of further divide between East and West in the coming multi-speed Europe.
Since the Council Decision of 1 January 1973, on the Act of Accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, which amended the Regulation No 1 determining the languages to be used by the European Economic Community of 1958, English has been an official language of the EU. As of today, English is an official language in three Member States: The United Kingdom, Ireland (Constitution of Ireland, Art. 8.2) and Malta (Constitution of Malta, I.5 (1)). However, it must be noted that only The United Kingdom has accredited English to the European Union. Indeed, Ireland (which joined the EU in the same year) chose to accredit Irish. Malta (which became a Member State in 2004) accredited Maltese. The essential framework under which language politics operate in the European institutions is Regulation n°1, mentioned above. Its preamble reads that the unanimity of the Council is required to determine the rules governing the languages of the institutions. Article 1 does not formulate the principle according to which each Member State could have the right to have one or several of its domestic official languages recognised as official languages in the EU. Rather, it enumerates which languages bear the status of official and working languages – which includes English.
A first teaching could be that, despite The United Kingdom exiting the European Union, English could remain an official language of the EU. De facto, it would be surprising for all Member States to agree on the eviction of the English language, mostly for reasons of pragmatism. If French was the lingua franca of the European Communities at the beginnings, the accession of the UK and Ireland, of the Scandinavian countries and especially of the Eastern countries in 2004 meant that English took over as the dominant language. The eviction of the English language would also create a situation regarding the right of every EU citizen to communicate with the EU institutions in one of the official languages of the EU, pursuant to Article 24 TFEU. What about Ireland, where at most 10% of the population speaks Irish1? Though European institutions would not be formally compelled to answer to an Irishman in English, the European Charter of Human Rights - rendered binding by the Lisbon Treaty - could throw in its two cents with Article 11 (right to information), Article 41 (right to be heard and right of access to documents relating to oneself) and Article 42 (right of access to the documents of the European institutions). However, could it not be argued that the permanence of the English language in the EU institutions, despite the exit of the EU of the only country having accredited English as an official language, would be against the spirit in which Regulation n°1 was drafted? This view would make sense in light of other issues brought up by Brexit, as far as the EU institutions are concerned. For instance, Art. 49 of the EU Staff Regulations stipulates that a civil servant may be required to resign if he breaches the obligation of being a national of one of the Member States of the Communities2. Derogations are rendered possible by Art. 28 (and have been used in the past, when Danish civil servants were hired before the accession of Denmark) but, as their name suggests, remain exceptional and do not reflect the spirit of the legislation. The Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 12 July 20013 sets out interesting perspectives on the issue we are currently considering. Originally a petty procedural linguistic problem, the case turned out to be a much broader assessment of the linguistic regime in the EU. The Court ruled first that “It is the legality of the rule in Article 115(3) of Regulation No 40/94, whereby the applicant must accept that she does not automatically enjoy the right to participate in all proceedings before the Office in the language of filing, which constitutes the direct basis for the decision of the Board of Appeal to which the plea of illegality raised by the applicant is directed”. Most crucially, the Court then claimed that, “it is therefore for the Court of First Instance, on foot of the plea of illegality raised by the applicant, to rule on the legality of the rules governing languages established for the Office by the Council” (para 56). The Court finally concluded that “it must first be pointed out that Regulation No.1 is merely an act of secondary law, whose legal base is Article 217 of the Treaty. (...) Secondly, the Member States did not lay down rules governing languages in the Treaty for the institutions and bodies of the Community; rather, Article 217 of the Treaty enables the Council, acting unanimously, to define and amend the rules governing the languages of the institutions and to establish different language rules. That Article does not provide that once the Council has established such rules they cannot subsequently be altered. It follows that the rules governing languages laid down by Regulation No.1 cannot be deemed to amount to a principle of Community law” (para 58).
This case teaches us three things: 1. Regulation N°1 is merely an act of secondary law, not a principle of Community law. 2. Linguistic rules can be altered. 3. The ECJ has the final word.
It does not seem totally insane therefore to imagine a scenario in which the ECJ would rule in the following way: no membership, no language - to be maintained as an official language, the unanimity of the Council is required.
Now, back to Ireland and Malta; could we imagine these States accrediting English? It is understood from Article 8 of Regulation N°1, “if a Member State has more than one official language, the language to be used shall, at the request of such State, be governed by the general rules of its law,” that first of all, only one language may be accredited. Even if we put aside the politically and symbolically unlikeliness to see Ireland giving up Irish for English or Malta Maltese for English, the expression “governed by the general rules of its law” may add to the difficulty. According to the Irish Constitution, Irish is supreme to English. According to the Maltese Constitution (Art 5), both English and Maltese are official languages, but only Maltese is the national language. A relevant question to ask is whether the act of exiting the EU annuls the act of accession, and therefore, with it, the demand for an official language to be accredited. Luxembourgish is not an official language of the EU, because Luxembourg never asked for it to be accredited in 1957: membership and language are logically considered as separate but, if membership can go without language, the reverse is not true (Turkey could not ask for Turkish to become an official language of the EU). The more precise question would therefore be whether the demand of accreditation is admissible without a valid act of accession. Interestingly, taking a step back and adopting a more historical view, there have been circumstances in the past where English has been used formally, whilst no Member State was English-speaking at the time. In 1953, there 32 translators and copy editors in the Linguistic Service, allocated in four groups (French, German, Italian and Dutch). Without being an official language of the ECSC, English was a working language of the organisation, because of the agreement concluded between the United Kingdom and the ECSC on 21 December 1954. The same phenomenon occurred at Euratom where, in a field dominated by the United States, English-speaking translators were hired. In 1962, these translators officially became civil servants of the European Community . This point reaffirms the relative autonomy of the EU institutions in terms of linguistic regime. In fact, Regulation N°1 does not claim that all official languages of the EU should be used in all circumstances by all institutions as working languages. The wording of the english version of the Regulation suggests that the use of certain languages instead of others is the exception rather than the norm: “the institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases” (Art. 6). However, the French version (which is the original) gives much more freedom to the Institutions, by not including the expression “in specific cases”: Les institutions peuvent déterminer les modalités d'application de ce régime linguistique dans leurs règlements intérieurs”. The French version is the view that was adopted by the conclusions of the ECJ in 20035. Indeed, some variations are to be found amongst different institutions. The European Commission has set out three procedural languages, French, German and English. The European Central Bank has opted for English as its working language, whereas the European Court of Justice deliberates in French. Today in the European Parliament, interestingly, Art. 117 of the Rules of Procedure specifies that any language can be used if deemed necessary (Rules of Procedure of the European Parliament, 14th edition, June 1999, OJ L 202, 2/8/1999). That could potentially include English, if it ceased to be an official language. The reverse could also be true; if the Council failed to repel English as an official language of the EU (and provided that the ECJ would not eventually contradict the Council), English could still cease to be used as a procedural and working language of the institutions. In this case, it would simply bear the status of a “treaty language”, like Irish today. In accordance with an agreement found between Ireland the Community in 1971, and valid until 31 December 2006, Irish was considered an official language but not a working language, both parties having agreed that only primary legislation would be translated into Irish. Irish became an integral official language on 1st January 2007, though a derogation was permitted until 2021, due to the difficulty of hiring skilled interpreters6. Today, the work carried out in the European institutions is done mostly in English. As of 2014, 82.5% of the original administrative and legislative documents were produced in English. Similarly, 261,000 pages were translated into English, 150,000 into French and 136,000 into German7. In other words, English is the most used language both in terms of writing and translating.
However, this is a relatively recent trend. in 1997, only 45% of documents in the Commission were written in English, and the rest mostly in French8 - in a Commission still haunted by the shadow of Jacques Delors. In the European Parliament, the use of French has been increasing since 2008, to reach 23.77% in 2014. Above all, one should not undermine the importance of having most European institutions based in French-speaking cities: Brussels, Luxembourg and Strasbourg. In sum, the possibility to substantially abandon English exists; this is a question of strong political willingness more than a utopian French narrative. Politico reports that Danuta Hübner, head of the European Parliament’s Constitutional Affairs Committee (AFCO), claimed that English “will not be one of the European Union’s official languages after Britain leaves the EU”9. The Wall Street Journal warned that the Commission “has already started using French and German more often in its external communications”10. A senior MEP stated, ‘If we don’t have the UK, we don’t have English’ Another tweeted, ‘English cannot be the third working language of the European parliament’. In conclusion, if the whole issue of the future of the English language has, of course, been determined by Brexit, I will stress the point that it must also be viewed in light of the emergence of a multi-speed Europe – a new framework which has been enshrined by the recent Rome Declaration (We will act together, at different paces and intensity where necessary, while moving in the same direction, as we have done in the past, in line with the Treaties and keeping the door open to those who want to join later). What could arise from this new policy is also a two-fold linguistic bloc. In the East, the lingua franca – pardon the pun - would remain English. In the West (taking into consideration Italy’s push for a reinforced status for the Italian language11, which should not be undermined), a politically-motivated reorientation towards the use of languages other than English.
Endnotes 1. Romaine, Suzanne (2008), "Irish in a Global Context", in Caoilfhionn Nic Pháidín and Seán Ó Cearnaigh, A New View of the Irish Language, Dublin: Cois Life Teoranta
4. http://www.academia.edu/6552655/la_traduction_%C3%A0_la_commission_europ%C3%A 9enne_1958-2010
5. Conclusions JACOBS sous CJCE, 9 septembre 2003, Kik, C-161/03 P, Rec.,p.I-8283, point 46
6. OP/B.3/CRI, Publications Office -. "Publications Office — Interinstitutional style guide — 7.2.4. Rules governing the languages in the institutions"
7. Ginsburgh, Moreno & Weber. Ranking Languages in the European Union: Before and After Brexit. ECARES working paper 2016-29.
8. http://www.lemonde.fr/les-decodeurs/article/2016/05/06/l-usage-de-la-langue-francaise-recule-au- sein-des-institutions-europeennes_4914763_4355770.html
11. Meanwhile, the president of the regional council of Tuscany, Eugenio Giani, called for Italian to become one of the official languages of the EU. “We have not defended ... our language as we should have, both on the European continent and in the world,” Giani said following the British referendum result. (Politico)