EU language policy: A legal perspective

1. EU language policy: A legal perspective Vít Dovalil Albert-Ludwigs-Universität Freiburg vit.dovalil@germanistik.uni-freiburg.de

2. Outline of talk • Research questions 2) Concepts and theoretical framework: language law analysis based on language management theory 3) Data analysis: • Italy v Commission (C-566/10 P, judgment of 27 November 2012) • Italy v Commission (T-124/13, action brought on 4 March 2013) • Spain v Eurojust (C-160/03, judgment of 15 March 2005) 4) Concluding remarks EU language policy: a legal perspective

3. Research questions • Which tendencies in the decision-making of the European Court of Justice (General Court, Civil Service Tribunal) can be identified as far as the language law is concerned? • To what extent is it possible to argue that the case law strengthens the equality of languages in the EU? EU language policy: a legal perspective

4. What does equality of languages mean? Forms of language equality in the sociolinguistic sense • equality of legal status (= language of public government, institutions) • equality of services, their quality and availability (= the same degree and quality of public services is available to all citizens in the official languages) • equal extent of use (= proportional representation), equal capacity to participate in public institutions in every official language. Not only non-discrimination, but incorporation of the differences equal languages – equally treated languages – equally treated users of different languages – language parity EU language policy: a legal perspective

5. What does equality of languages mean? Forms of language equality in the sociolinguistic sense • equality of legal status (= language of public government, institutions) • equality of services, their quality and availability (= the same degree and quality of public services is available to all citizens in the official languages) • equal extent of use (= proportional representation), equal capacity to participate in public institutions in every official language. Not only non-discrimination, but incorporation of the differences equal languages – equally treated languages – equally treated users of different languages – language parity EU language policy: a legal perspective

6. Language management theory of language problems LM is conceived of as „behavior towards language as it appears in discourse“ (Nekvapil/Sherman 2009) „generate“ x „manage“ agents (networks) ethnomethodological approach metalinguistic activities legally regulated interventions in the language use Who intervenes in whose language use how, why, with which expectations and with which consequences? EU language policy: a legal perspective

7. Organized language management Nekvapil 2009: 6 • management acts are trans-situational • social networks or even institutions are involved • communication about LM takes place • theories/ideologies intervene ( equality) • in addition to language as discourse, the object of LM is language as a system power and interests in all phases of the process EU language policy: a legal perspective

8. Data Sources: Database EUR-Lex Official Journal of the European Union EU language policy: a legal perspective

9. Data Relevant domains: • workplace: recruitment of staff (notices of open competitions) • administrative proceedings • labelling of foodstuffs (the problem of „languages easily understood by consumers“) • penal law EU language policy: a legal perspective

10. Recruitment of staff • Tendency of the institutions to reduce the number of languages since 2004/2005 • Preference for EN, FR, GER • Attempt to rationalize the communication, based on expectations of the applicants’ qualification. • Conceived of as internal procedures of the institutions (= rather working languages?) EU language policy: a legal perspective

11. Cases • Italy v Commission (C-566/10 P, judgment of 27 November 2012) • Italy v Commission (T-124/13, action brought on 4 March 2013) • Spain v Eurojust (C-160/03, judgment of 15 March 2005) EU language policy: a legal perspective

12. applicant Italy Spain defendant Commission/EPSO European Personnel Selection Office Eurojust police and judicial cooperation in criminal matters Agents EU language policy: a legal perspective

13. Substance of the disputes • EPSO published notices of open competition only in EN, GER and FR. • Eurojust required higher knowledge of EN(/FR) and a letter of motivation and CV in English (only). • Pleas in law: non-discrimination, equality of languages EU language policy: a legal perspective

14. Pleas in law (Italy) • Competition notices not published in full in the OJ in all official languages (= infringement of Reg No 1 and Art. 290 EC) • Choice of the language limited arbitrarily only to 3 languages • Infringement of the principle of the protection of legitimate expectations (settled practice of publishing notices in all official languages before July 2005) EU language policy: a legal perspective

15. Pleas in law rejected by GC • Competition notices not published in full in the OJ in all official languages (= infringement of Reg. 1 and Art. 290 EC) • Choice of the second language limited arbitrarily only to 3 languages • Infringement of the principle of the protection of legitimate expectations (settled practice of publishing notices in all official languages before July 2005) EU language policy: a legal perspective

16. Pleas in law accepted by ECJ • Competition notices not published in full in the OJ in all official languages (= infringement of Reg. 1 and Art. 290 EC) • Choice of the second language limited arbitrarily only to 3 languages • Infringement of the principle of the protection of legitimate expectations (settled practice of publishing notices in all official languages before July 2005) EU language policy: a legal perspective

17. Spain’s pleas in law A member of the temporary staff may be engaged only on condition that „he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties“. Staff Regulation, Art. 28, Eurojust Art. 12 EU language policy: a legal perspective

18. Spain’s pleas in law Language use of Eurojust should be regulated by Regulation No 1 (= equality of languages) More favourable treatment of English (and French) is not justifiable. Spain nevertheless left „to the discretion of the Court the choice of the most appropriate legal basis for its action, claiming that, in any event, any error […] should not result in a declaration of inadmissibility“. EU language policy: a legal perspective

19. Eurojust raised an objection of inadmissibility of the action „the sound functioning of the institutions and the Community bodies may objectively justify a limited choice of languages of internal communication“. This „cannot undermine equal access by citizens of the Union to posts offered“. „These needs are acknowledged by the case-law“. Case T-376/03 Hendrickx v Council (2005) EU language policy: a legal perspective

20. Judgment of the ECJ „[…] it must be pointed out that it is for the applicant to choose the legal basis of its action“ „[…] the acts contested in the present action are not included in the list of acts the legality of which the Court may review“ „[…] It follows that the action […] cannot be declared admissible“ EU language policy: a legal perspective

21. Concluding remarks No clear tendency to treat the langauges equally in terms of availibility of services and their quality Sophisticated (formal) arguments passing the sociolinguistic substance of some language problems Ideology of equality not implementable in all cases EU language policy: a legal perspective

22. Concluding remarks: solutions to language problems? 1) socio-cultural (socio-economic) management 2) communicative management 3) language management EU language policy: a legal perspective

23. References • Dovalil, Vít (2012): Language as an Impediment to Mobility in Europe. In: Studer, Patrick/Werlen, Iwar (Eds.): Linguistic Diversity in Europe. Current Trends and Discourses (= Contributions to the Sociology of Language 97). Berlin/New York: Mouton de Gruyter, 259-286. • Dovalil, Vít (2013): Ideological positioning in legal discourses on European multilingualism: Equality of languages as an ideology and a challenge. In: Barat, Erszebet/Studer, Patrick/Nekvapil, Jiří (eds.): Ideological Conceptualisations of Language: Discourses of Linguistic Diversity (= Prague Papers on Language, Society and Interaction 3). Frankfurt/Main u. a.: Peter Lang, 147-170. • Nekvapil, Jiří/Sherman, Tamah (eds.)(2009): Language management in contact situations: Perspectives from three continents. Frankfurt/Main: Peter Lang. EU language policy: a legal perspective

24. References • Romaine, Suzanne (2013): Politics and policies of promoting multilingualism in the European Union. Language Policy 12, 115-137. • Wright, Sue (2013): Why isn´t EU language policy working? In: Schneider-Wiejowski, Karina et al. (eds.): Vielfalt, Variation und Stellung der deutschen Sprache. Berlin/Boston: Walter de Gruyter, 259-273. • Manz, Viviane (2003): Schranken nationaler Sprachenpolitik durch das Gemeinschaftsrecht. In: Burr, Isolde/Gréciano, Gertrud (Hg.): Europa: Sprache und Recht. La construction européenne: aspects linguistiques et juridiques. Baden-Baden: Nomos, S. 189-198. EU language policy: a legal perspective

25. Language management Interactions/interlocutors with expectations no deviationdeviation from the expect. unnotednoted not evaluatedevaluated EU language policy: a legal perspective

26. Language management evaluated positivelynegatively no adjustment designadjustment design not implementedimplemented EU language policy: a legal perspective

27. Language management utterances adjustments „generate“ „manage“ notingevaluation the deviations EU language policy: a legal perspective

28. Legal discourse language problems are reflected in various ways suits textbooks law law in action in books judgments codified norms types of texts and intertextual ties Dovalil 2012: 265 EU language policy: a legal perspective

29. Kik v OHIM (Reg 40/94) Art. 115 1. The application for a Community trade mark shall be filed in one of the official languages of the European Community. 2. The languages of the Office shall be English, French, German, Italian and Spanish. 3. The applicant must indicate a second language which shall be a language of the Office the use of which he accepts as a possible language of proceedings for opposition, revocation or invalidity proceedings. EU language policy: a legal perspective

30. Judgment of the ECJ „Regulation No 1 is merely an act of secondary law and the Member States did not lay down rules governing languages in the Treaty“ „[…] The rules governing languages laid down by Regulation No 1 cannot therefore be deemed to amount to a principle of Community law and the applicant cannot rely on Article 12 EC in conjunction with Regulation No 1 as a basis for demonstrating that Article 115 was illegal.“ EU language policy: a legal perspective

31. Judgment of the ECJ „[…] No principle that all official languages of the Community must in all circumstances be treated equally may be inferred from the Treaty“ EU language policy: a legal perspective

32. References • Macmillan, Michael C. (1998): The Practice of Language Rights in Canada. Toronto/Buffalo/London: University of Toronto Press. EU language policy: a legal perspective