Legislazione Europea

How the European Commission drafts legislation in 20 languages

Un interessante articolo curato da William Robinson, Coordinatore del Legal Revisers Group dei servizi legali della commissione Europea.

L'articolo ci illustra i diversi stadi che attraversa la produzione della legislazione europea quando viene tradotta nelle 20 lingue ufficiali. Affronta la complessità del processo di traduzione e cita le linee guida a disposizione per aiutare gli specialisti a produrre testi in grado di comunicare la legge. MLombardi

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The European Community (EC) legislative process Under the EC Treaty as amended over the years most basic Community legislation is adopted jointly by the European Parliament, directly elected by EU citizens, and the Council, representing the governments of the Member States, with only a few fields such as taxation, agriculture, and fisheries being reserved to the Council alone. But in almost all cases the proposal for legislation—the first draft of the measures—must come from the Commission, and without such a proposal the other institutions cannot act. Also under the EC Treaty, most of the detailed rules to give practical effect to the basic legislation are to be adopted by the Commission, which must generally act with the approval of a committee composed of representatives of the Member States. The EU has 20 official languages Article 290 of the EC Treaty states: The rules governing the languages of the institutions of the Community shall … be determined by the Council, acting unanimously. Those rules were laid down by Regulation No 11, as amended by successive Acts of Accession, under Article 1 of which: The official languages and the working languages of the institutions of the Union shall be Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish. Article 4 provides “Regulations and other documents of general application shall be drafted in the twenty official languages”, thus indicating that there is not simply one original language version and 19 translations. Under Article 5, the Official Journal of the European Union must be published in all 20 languages. Exceptionally, because of difficulties regarding translation into Maltese, Regulation (EC) No 930/ 2004 lays down that, for a limited period, acts need not be drafted and published in Maltese. Irish is not an official language under Regulation No 1, but the Treaties themselves are authentic in Irish. Although all 20 official languages are the working languages of the institutions according to Regulation No 1, the institutions’ day-to-day work can hardly be carried on in all of them simultaneously. Different institutions have chosen different practical solutions, a number of which have faced legal or political challenges. Some institutions have opted for a single internal working language: French for the European Court of Justice, English for the European Central Bank, for example. The European Commission has a policy of using three languages for internal purposes: English, French and German. In practice, French and English are the main languages of internal communication and drafting. Formerly French enjoyed a clear predominance but in recent years the balance has shifted and now within the Commission most drafting is done in English. How the Commission drafts legislation Step 1—First draft written by technical experts Legislation is drafted by the technical department for the sector concerned, not by a corps of drafting specialists. The first drafts are generally written not by lawyers but by technical experts such as economists or scientists: veterinarians draft animal health rules and so on. Until recently, new arrivals were not even given much in-house training in drafting and would have to depend on their own experience and national background and the experience of colleagues. Drafters must write in either English or French and their choice is determined by the language used in their department. So most write in a foreign language, and it is harder for them to write exactly what they want to say or to express their ideas in the clearest possible way. One result is a tendency for drafters to follow precedents. It is much easier for non-native speakers of a language to stick to provisions or phrases that have been used in earlier legislation. Non-lawyers gain some comfort from the fact that provisions or phrases have been used before and therefore—they assume—cannot be wrong. Adherence to precedents drawn from past legislation is all the more tempting since they exist in all the languages. All those dealing with the new draft in English or French will be able to find out what it will look like in their own languages. Translation will probably take less time and present fewer problems because the translators can rely in part on the old text. Unfortunately the precedents chosen may not be best suited to the new circumstances. Because the drafters are not lawyers, they may not always analyse sufficiently the circumstances they are dealing with and those dealt with by the precedent. And because they have to work in a foreign language, they are not in a position to judge the linguistic quality of the precedent they have chosen. Moreover, drafting standards have evolved and over-reliance on precedents tends to perpetuate past faults and weaknesses. Step 2—Consultation within the Commission Once the technical department has prepared its preliminary draft, it is submitted to the other Commission departments concerned as part of the internal consultation procedure. The Commission’s Legal Service has to be consulted on all draft legislation. Lawyers specialising in the sector concerned will examine the draft for compliance with the law and coherence with other legislation in the field. The Commission’s legal revisers, who all have dual legal and language qualifications, will examine it for compliance with the rules on form and presentation of legislation, in particular the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions 2. At this comparatively early stage when the draft exists in only one language, far-reaching changes can be suggested if the legal revisers believe them necessary. Unfortunately the strict, short deadlines under the internal rules and the volume of work prevent the revisers from always achieving the standard they would like. The formal Legal Service response is drawn up by the lawyer for the sector concerned and generally—but not always—incorporates all the legal revisers’ suggestions. The lawyer will sometimes drop some of the legal revisers’ suggestions in deference to the wishes of the originating department. If the originating department chooses, it may also consult a team of editors in the Translation Directorate-General who will suggest linguistic improvements. After those consultations it is up to the originating department to take account of the comments received. Generally the Legal Service’s suggestions must be followed although it does not have the power to block a text altogether. Step 3—Translation into the other official languages The text must then be translated into all the official languages by the Translation Directorate-General, before formal adoption by the Commission. Sometimes the originating department has already begun the translation process before receiving the Legal Service’s suggestions. It may then be reluctant to accept any drafting changes because of the difficulty of having the changes made in all the other language versions by the Translation Directorate-General, or else it may have the changes made by members of its staff who are not trained translators: a hazardous course. The legal revisers may have another opportunity to revise the text at this stage. Revision may be requested by the originating department, often at the instigation of the Legal Service or of the Commission’s Secretariat-General, which has general responsibility for ensuring that procedures are properly followed. Since the text has passed through extensive consultations, is often the fruit of difficult compromises, has been translated into all the official languages and is to be adopted in a matter of days, the revisers must confine themselves to correcting formal or terminological errors and ensuring that the legal scope is exactly the same in the different language versions. What happens when the Commission has adopted a legislative proposal? The Commission’s proposal is submitted to the European Parliament and the Council, where it passes through those institutions’ internal preadoption procedures. In the European Parliament it is considered by a committee of Members of the European Parliament, which submits a report to the plenary. In the Council it is considered by working groups consisting of experts from the Member States. Each institution has its own team of legal revisers who will also ensure that the drafting rules are complied with. At the more advanced stages of the procedure, however, it is harder to propose restructuring or rewriting for the sake of clarity and the revisers’ primary responsibility is to correct mistakes and ensure that the various language versions correspond exactly. Particular features of EU law Multilingualism A unique feature of EU legislation is that it exists in 20 language versions, each of which has equal force. This fact and the multilingual drafting process are the source of certain complications. The handicap of having to work in a foreign language weighs heavily on the authors of the first drafts but it affects the subsequent stages of the procedure too. Most of those involved in discussions on that draft will also be working in a foreign language and will have extra difficulty, first in understanding what is in the draft, and then in explaining how they want it altered. The resulting text must then be translated, which creates scope for misunderstanding, especially if the original text is not clear. The text will also undergo various word processing manipulations as it passes from one department to another. At all these stages mistakes can creep into the various versions. In a monolingual system, there is less scope for linguistic errors in the first place, and most errors that do slip in will tend to be corrected by those involved at later stages, right up to the level of the minister who signs the final text. In a multilingual system, few of those involved at later stages will actually be native speakers of the language version concerned and so such spontaneous correction is less likely. It may happen that a term used in one language leads to a misunderstanding in another. In Regulation (EC) No 141/20003, the term “orphan drug” is used in a technical sense (known to the trade circles) of a drug which is used to treat a rare disease and for which the manufacturer receives special tax credits and marketing rights as an incentive to develop the drug. However, a German expert has assured me that she has seen it translated as “medicine for children without parents”! In the Koschniske case , the Court of Justice was asked whether “diens echtgenote” (Dutch: “whose wife”) in a provision of a regulation on social security could also be understood to mean a married man. The Court held that it could, by interpreting it in the light of all the other language versions, which used a word such as spouse to cover both sexes, as well as the purpose of the provision and the principle of equal treatment. In June 2004 a Directive on jams, jellies and marmalades had to be amended because the German version had used the terms “Konfitüre” and “Marmelade” for “jam” and “marmalade” respectively, while in certain local markets in Austria and Germany the term “Marmelade” is traditionally used for “jam” and the term “Marmelade aus Zitrusfrüchten” is used for “marmalade”. A recent example of the pitfalls of the system was the native-English-speaking author who refused to accept the revisers’ correction of “ton” to “tonne”. He said that “tonne” had been in all the documents submitted to him but he had checked in an English dictionary and the correct spelling in English was “ton”. He was clearly unaware that a tonne or metric ton is 1 000kg while a British ton is 2 240lb (1.016 tonnes). To ensure that the legal effects of an act are identical in all languages the various language versions must, as far as possible, have the same form. It is not permissible to adopt a solution to a drafting problem that works only in one language. For example alphabetical order cannot normally be used because items would appear in a quite different order in most languages. During the drafting of the Constitution one thorny problem was the names for the various components of the Court of Justice. Some languages, such as French, have two words (“cour” and “tribunal”) which on their own convey a hierarchy which could not be reflected by two words in some other languages, including English. Moreover, in some languages two words similar to the French words exist but the hierarchical order is not clear. The solution finally adopted was to call the lower body “general court” or the equivalent except in languages where single words were enough to convey the hierarchical relationship. Multilingualism is not just a complicating factor. It brings benefits too: the original text is subjected to a particularly close scrutiny as all the translators and revisers consider how the meaning should be rendered in their own languages. Mistakes or lack of clarity or consistency in the original are often brought to light by the translation process and corrected. Multiculturalism EU legislation becomes more complex because it has to deal with many different cultures and divergent local conditions. The animal health rules contain many examples. The rules on ear tags on bovine animals had to take account of the particular cases of bullfights in some Mediterranean countries and the custom in some Nordic countries of displaying animals in traditional rural settings, in farm museums for example. When pet passports were introduced to make it easier for citizens to travel with their pet animals, they catered not just for cats and dogs, which are common pets throughout Europe, but also for ferrets, much to the bemusement of countries with no ferreting tradition. During a case at the Court of Justice in which the French word “chasseurs” had to be translated into English, the translator pointed out that in England hunting would conjure up images of red-coated horse riders in pursuit of inedible foxes whereas in France hunters are often local farmers and workers out with a gun and a dog shooting birds for the pot. Taking account of multiculturalism is a dynamic process since local conditions are evolving at different speeds in different countries. Even areas where there was once a large degree of uniformity across the Member States may become more complex. For example, marriage has generally been regarded as an institution with common core features across the EU. Since the introduction of same-sex marriages in the Netherlands, however, some people there find it is no longer enough to say they are married but feel it necessary to specify the sex of their partner. Negotiated law The first drafts of legislation are not of the highest quality and the text becomes even heavier through the cumbersome process of multilingual committees whose members are making textual suggestions in one language but “thinking” in another, whether their native language or one in which they formerly worked. At a very early stage the draft becomes the expression of the policy and many subsequent attempts to influence the policy consist of textual suggestions by bodies largely made up of non-native speakers of the drafting language. Changes are made with a view to achieving policy ends rather than producing clear, simple and precise legislation. It sometimes happens that a provision is deliberately left vague (known in French as flou artistique) to paper over a failure to reach full agreement. This is a situation addressed by the Joint Practical Guide in point 1.3: Provisions that are not clear may be interpreted restrictively by the Community courts. If that happens, the result will be just the opposite of what was intended by the incorporation into the text of grey areas intended to resolve problems in negotiating the provision. The Joint Practical Guide cites the example of the Pro- Sieben case in which the Court concurred with the conclusion of Advocate General Jacobs, after having applied all the available methods of interpretation, that two opposing interpretations were possible. AG Jacobs stated (at Point 53): in the present case, … the provision in question appears to be, in the light of the arguments advanced on both sides, not only equally open to two conflicting interpretations, but perhaps deliberately ambiguous. An ambiguity—and particularly a deliberate ambiguity—cannot be invoked to restrict a fundamental freedom. Lack of continuity in the drafting process The European drafting process differs from many national systems in that there is not a single department with responsibility for total quality. Texts are largely drafted by committee with the familiar danger that all contribute but no one single person assumes full responsibility. The danger exists within the Commission itself because so many different departments, each with different priorities, are involved in the drafting process. In 2001 an attempt was made to tackle part of the problem by adopting guidance on the responsibilities of those involved in the drafting process within the Commission. The danger is aggravated by the fact that for all basic legislation, the texts produced by the Commission pass to the European Parliament and the Council, where they may be substantially changed by committees and working parties before adoption. Steps taken to improve drafting? As long ago as 1992 the European Council adopted the Birmingham Declaration including the strong message: “We want Community legislation to be clearer and simpler”. At the Amsterdam Intergovernmental Conference in 1997 the heads of State and of government adopted Declaration 39 calling on the Community institutions to adopt common guidelines for improving the drafting of Community legislation and to take “the internal organisational measures they deem necessary to ensure that these guidelines are properly applied”8. On 22 December 1998 the institutions adopted an Interinstitutional Agreement setting out 22 guidelines for drafting, based in large part on suggestions from the Member States. The first guidelines include general principles familiar to all drafters:

• draft in clear, simple and precise terms;
• think of the addressees;
• keep sentences and provisions short;
• use plain language; be consistent both within one act and between acts in the same field. That agreement also listed the internal measures to be taken. The very first was to produce, in March 2000, the Joint Practical Guide for persons involved in the drafting of legislation. That guide was translated into all the official languages and distributed within the institutions. In 2003 it was published and put on the EU’s website for legislation, EUR-LEX10. The guide is quite short with less than 100 pages, laid out in accessible form and illustrated by models and examples of good and bad drafting. It is designed to help all those involved in the legislative process, those writing the first draft, those commenting on drafts, the translators of the various language versions and those negotiating the final text. Secondly the institutions undertook to enable their legal services and in particular their legal revisers to make drafting suggestions earlier in the process. The Commission’s legal revisers now have the opportunity to revise all draft legislation as soon as the originating department submits it to the other Commission departments for approval, and they handle some 2000 drafts a year. The institutions also committed themselves to providing drafting training to their staff. Since 2001 the Commission’s legal revisers have been offering basic legislative drafting courses, which have been attended by some 400 staff. A computer programme has been introduced to standardise the presentation and formatting of legislation and to steer drafters in the right direction. Contacts have been established with the Member States to exchange views on drafting and ways to improve legislation. The legal revisers of the three institutions sometimes liaise with each other to harmonise their practices and agree on common solutions to problems. At the end of 2003, the institutions adopted a new Interinstitutional Agreement11 reaffirming their commitment to the full application of the 1998 Agreement and to “ensure that legislation is of good quality, namely that it is clear, simple and effective” (point 25). As part of efforts to make European legislation more accessible, the institutions have also adopted agreements on codification and recasting12. Other possible steps In 1995 an influential report on the quality of Community legislation was produced by a committee of senior Dutch civil servants chaired by a former judge at the Court of Justice, Judge Koopmans. One of its suggestions, endorsed by other commentators, was an independent body to review acts at the stage of the Commission’s proposal or just before they become law, on the model of the French Conseil d’état or similar bodies in some Member States. At the end of 2003 the United Kingdom Foreign and Commonwealth Office presented a report examining the drafting of EU legislation and identifying problems relating to the application and interpretation of EU legislation in Member States. It suggested an EU Legislative Drafting Office, perhaps modelled on the UK Parliamentary Counsel Office, independent of present institutions, with responsibility for draft legislation throughout the legislative process. In January 2004 the four countries holding the rotating presidency of the European Council in 2004 and 2005 (the Netherlands, the United Kingdom, Ireland and Luxembourg) launched a Joint Initiative on Regulatory Reform to maintain the momentum in implementing the Commission’s Action Plan on simplifying and improving the regulatory environment. Other Member States have since backed the initiative. The standards by which EU legislation has to be judged At a Colloquium of the Association of the Councils of State and Supreme administrative jurisdictions of the European Union in The Hague in June 2004, it was suggested that EU legislation should be judged by different standards from national legislation. The President of the Association, Mr. H. Tjeenk Willink, Vice-President of the Dutch Council of State said: The European legal order was devised to serve diversity and pluralism and the EU’s legislators must take this into account. There were some law introduced in the name of the free market which made it mandatory for all cafés in Europe to meet the same requirements, it might denote a success for that free market but it would spell failure for the concept of Europe. Of Europe as a cultural and social reality. “European legislation is not intended to take away the diversity of legal traditions, methods and systems in the Member States, but rather to shape their compatibility”. This means that the EU’s legislators do not necessarily play the same role as national ones. While national legislators focus primarily on how to find uniform solutions to what are experienced as common problems, European legislation must define the scope for diverse solutions. National legislators will often indicate what must be done while EU legislators will indicate what must be stopped. Is it possible then that the lack of clarity and lack of precision resulting from the process by which EU legislation is adopted are not just unfortunate side effects of that process but are actually essential to enable the system to work by giving the Member States the leeway they need to adapt it to their own legal systems? Perhaps in EU law the point of balance between fuzzy and fussy legislation is different from that in national systems. Whatever the answer, the acknowledged need for some leeway or “wriggle room” cannot be treated as licence to be sloppy. Communicating the law G.C. Thornton has written that the legislative draftsman’s “task is not only to determine the law, but also to communicate it”. At the 1990 Commonwealth Law Conference, he suggested: Communication depends on an overlap of the linguistic experience of the sender and receiver of the message. There must be a shared context of both linguistic experience and social experience if ambiguities and other comprehension problems are to be avoided or resolved. For European legislation, identifying a shared context presents particular problems. While there is perhaps some overlap of linguistic experience at the level of the government representatives who negotiate the texts, there is less overlap at the level of the lawyers and civil servants in the Member States, and still less in the case of the ordinary citizen. A shared context of social experience must be viewed in relative terms. While a person at one geographical extreme of the Community may perceive considerable cultural differences between his or her social context and that of the other geographical extremes, those differences might appear quite small to a person viewing the situation from the other side of the world. Perhaps we Europeans are too conscious of our differences and not enough aware of the increasing amount that we have in common. Language In view of the trends in language knowledge and teaching in Europe, more of the institutions’ dayto- day work will probably be done in English. The problem of authors or negotiators thinking in French (because they have been doing so for many years) but drafting in English will tend to diminish. At the same time, and partly as a result of that change, the general standard of English amongst its staff will probably improve. This does not mean that EU English will come to use only words in common use in the British Isles and that those words will have the same meaning. Indeed the Court of Justice has held that it is unsafe to assume that words used in EU law have the same meaning as in national law. In fact EU English is an international medium of communication divorced from any one national culture. Is it possible that, in the same way as EU legislation has to be judged by different standards from national legislation, EU English cannot be judged by domestic standards in the British Isles? It is perhaps indicative that a booklet published in English by the EU institutions advising authors how to draft in order to make sure translation is easier and more faithful was based on a Swedish document which in turn was a translation and adaptation of a Finnish guide produced for Finnish domestic purposes. This “internationalisation” of English is part of a wider trend, not just confined to the EU. In England itself, Leeds Metropolitan University is “launching a new MA in Teaching English as an International Language in September 2005 which will be staffed by a team of mainly non-native speaker lecturers”. Euro-speak On 2 September 2004 The Economist published a lighthearted article in its Charlemagne column entitled “Decoding a Euro-diplomat takes more than a dictionary”. It looked at some of the language problems in the institutions and concluded: But ever-inventive Brussels is coming up with a solution of sorts through the emergence of “Euro-speak”—a form of dead, bureaucratic English. The joy of phrases like “qualified majority voting”, “the community method” and “the commission’s sole right of initiative” is that they are completely meaningless to all ordinary Europeans—whether in translation or in the original. But, crucially, they are crystal-clear to insiders. The idea of Euro-speak dictionaries explaining to outsiders what EU insiders are talking about is one to be taken seriously20. There are precedents. Back in 1886 a guide to Indian English words called Hobson-Jobson was published by Yule and Burrell to explain new words such as “curry” and “juggernaut” that we now accept without question in everyday English. A dictionary explaining the Euro-English expressions listed by The Economist but also many more such as “transposition” (the way European directives are made part of national law) and “Comitology” (the system of committees of Member States’ representatives overseeing the Commission’s exercise of the powers delegated to it) would certainly help the “outsiders” now, even if it might seem quaint in years to come. A critical approach to the quality of language and legislation in the EU is healthy. But critics should ensure that they know what they are talking about before they sound off. In 2004, BBC journalist John Humphrys published a book entitled Lost for Words: The Meaning and Manipulation of the English Language, in which he blamed institutions like the EU for the decline in standards of English. He complained of the use of such words as “pertannually” in the draft European Constitution and the fact that when concerns were raised, the word was replaced with “insubdurience”, an assertion picked up by various reviewers. In fact those words did not exist. According to Private Eye magazine, Humphrys had simply been taken in by a spoof by Simon Hoggart published in the Guardian newspaper in June 2004. What more could be done? The departments and staff of the institutions must be made aware that even if imprecision, diplomatic vagueness, linguistic slips and awkwardness are inevitable and tolerable in their day-to-day communications, much higher standards must apply to the drafting of legislation. Moreover, while numerous routine management laws may continue to be drafted by a production line process, special procedures may be needed for drafting fundamental laws. Those could be entrusted to specialist drafters who should be allowed the extra time and resources necessary to produce a quality product. The Commission’s technical departments, which under the present internal rules are responsible for the quality of the first drafts, should each set up their own drafting units (as called for in the 1998 Interinstitutional Agreement) to meet that responsibility, facilitate all the work on the text downstream, and pave the way for a better final product. More generally, all departments and staff of the institutions should recognise the crucial importance of effective communication and take language skills more seriously, especially in the main internal working languages, English and French. All staff concerned should be offered advanced training in those languages. Greater emphasis should be placed on drafting as a specialist skill and all drafters should be offered reinforced back-up, both by human drafting specialists and by computer systems. The author: William Robinson has for many years worked in the field of European law and language, He started his career in Luxembourg as a legal translator at the European Court of Justice before moving to Munich as a translator, reviser and editor for the European Patent Office. He then returned to the Court of Justice where he revised translations of its judgments and produced guidance for English translation. Since 1996 he has been a legal reviser in the European Commission’s Legal Service in Brussels revising draft legislation and working on guidance and training for drafters.