DOCUMENT RESUME ED 480 346 FL 027 809 Alcaraz, Manuel AUTHOR Languages and Institutions in the European Union. Mercator TITLE Working Papers. European Union, Brussels (Belgium). SPONS AGENCY REPORT NO WP-5 ISSN-1133-3928 ISSN 2001-00-00 PUB DATE 16p.; Produced by CIEMEN (Escarre International Centre for NOTE Ethnic Minorities and Nations), Barcelona, Spain. AVAILABLE FROM CIEMEN, Rocafort 242, bis, 08020 Barcelona, (Catalunya), Spain. Tel: 34-93-444-38-00; Fax: 34-93-444-38-09; e-mail: [email protected]; Web site: http://www.ciemen.org/mercator. PUB TYPE Reports Descriptive (141) EDRS PRICE EDRS Price MF01/PC01 Plus Postage. DESCRIPTORS Foreign Countries; Language Maintenance; Multilingualism; *Official Languages; Sociolinguistics IDENTIFIERS *European Union; *Language Policy ABSTRACT This paper situates languages in the framework of European construction, analyzing problems resulting from the definition of languages' official status in the European Union (EU) juridical system. It explains that the process of European construction is historically defined by means of two distinct features (it is an open process, and at the same time, it is an accumulative process). The paper looks at the system of linguistic officiality in the EU (the Council, the Parliament, the Court of Justice, and Ombudsman), then it notes that the question for many policymakers, officials, and journalists is whether the current system is sustainable at this stage of the EU enlargement process. After summarizing a 1995 Parliamentary resolution on the use of official languages in EU institutions, the paper discusses minority languages, which are not EU official languages. It concludes that since the European construction process is an ongoing process, linguistic vertebration will continue to be a provisional matter. It suggests that if Europe is going to be constructed based on diversity and liberty, then Europe will be a place of bilingual people. 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Points of view or opinions stated in this TO THE EDUCATIONAL RESOURCES document do not necessarily represent INFORMATION CENTER (ERIC) official OERI position or policy. 1 BEST COPY AVALABLE 2 Mercator Linguistic Legislation Working Papers num. 5 ( Languages and institutions in the European Union Manuel Alcaraz Ramos Full Professor of Constitutional Law at the Universitat d'Alacant Some preliminary ideas 1. 1 The system of linguistic officiality in the European Union 2. 6 a) The Council 7 The Commission b) 8 The Parliament c) 8 d) The Court of Justice 9 e) Ombudsman 9 Present and future problems 3. 9 Minority languages 4. 11 Some conclusions 5. 12 1. Some preliminary ideas I would like to begin this paper with an exposition of two preliminary ideas which will allow me, on the one hand, to situate languages in the framework of the European construction, and, on the other, to analyse those problems derived from the definition of the languages' official status in the EU juridical system. The first idea that should be highlighted is that the process of European construction is historically defined by means of two distinctive features: it is an open process and, at the same time, an accumulative one. In effect, this is a process that flourishes from the sum of political decisions developed over time -and not always planned- which have adopted different juridical formulae. For us, the most important juridical formula is that of an International Treaty, irrespective of the fact that some of these treaties have been innovative in juridical terms, thus creating systems that directly or indirectly bind the states. This is an important consideration for it necessarily affects linguistic regulation which, historically, has never been set down in this fashion. 1 3 Mercator Working Papers num. 5 Linguistic Legislation However, we may at the same time identify the process of European construction with two other features which might seem to be opposites although they have in fact proved to have a symbiotic capacity: It is a functionally-based process, that is to say, it is based on the adoption of decisions so 1. that "things" may work out, while steering clear of political or juridical known precedents, including some of the big concepts of the European traditional ideology, such as "sovereignty", "power division", etc. It is a process highly concerned with symbols, or, in other words, with providing in every 2. stage of the process an increasing importance to a "European symbolic space", to the extent that the "United Europe" becomes a very powerful symbol in itself. The symbiosis that has taken place beyond the apparent paradox is explicable through functionalist pragmatists' awareness of the fact that, in a such a plural and historical territory, pragmatism is required to incorporate symbols. Obviously -and this is a first basic idea-, linguistic pluralism is a basic fact in this reality. The problem, as we will see later on, is to what extent the functionality of symbols may become dysfunctional. In order to elaborate on these ideas, will briefly comment on a very I interesting discussion that was held as to whether or not the EU needs to endow itself with a real constitution comparable to those of democratic countries. Such discussion may be found in the issue nr. 55 of the journal Debats1, originally in German and subsequently translated into Spanish. I will now quote some parts from the latter version. One of the viewpoints is defended by leading jurist Dieter Grimm. This author states, and it is true, that nowadays governments play the most relevant role in the European political process, or, using an already classical expression, they are the "Lords of Treaties". This implies that EU power only derives from the people inasmuch as the governments' power stems from the people's will. This is, however, a feeble legitimacy, the so-called EU's "democratic deficit" it is interesting in this respect to read the European Parliament's Resolution subsequent to the Treaty of Maastricht. Grimm infers from this fact that the traditional pattern aimed at putting an end to this problem is through the approval of a constitution that would result in more 1 Debats, nr.55, Valencia, 1996. The articles mentioned are: D.GRIMM. "6Necesita Europa una ConstituciOn?", pages 4 and following. J.HABERMAS. "Observaciones a 'Necesita Europa una Constitución?'", pages 21 and following. 2 4 Mercator Linguistic Legislation Working Papers num. 5 democracy and more legitimacy embodied in a civil society which expresses itself autonomously and which becomes reflected in the Parliament. So far this is a clear and impeccable theory. Grimm, though, immediately shows his lack of confidence and doubts about the real possibilities of this constitution which would necessarily be a federal one- mainly because he is not of the opinion that such European civil society could be shaped at this stage. Of a major concern here is the relevance given to linguistic plurality. Grimm states that "the biggest obstacle to the europeanization of the political substructure, on which the functioning of the democratic system and the Parliament's action depend, is language. Communication is closely linked to language and to the interpretation and experience of the world through language. Information and participation insofar as basic conditions for the democratic existence are mediated through language". Therefore, given the European sociolinguistic reality, the majority of citizens find their participation restricted, as well as "they are in a disadvantageous position regarding the European opinion-making mediation of interests process, which becomes more affected than any other national type of estrangement from its basis." He still insists on this: "the importance of the linguistic factor regarding the viability of European democracy is often underestimated, partly due to the predominance of a concept of democracy which is confined to the opinion-making area so that the linguistic skills of functional elites, or even a large- scale translation system, are considered to be sufficient. This fact partly derives from the incapability to perceive the democracy's dependence on communication possibilities." Grimm's conclusion with respect to the viability of a European democratic-constitutional system is that a previous collective identity is needed in order to normalise the acceptance of decisions taken by a majority in community bodies, as well as assuming efforts involving solidarity that do not necessarily benefit part of the EU. The author finally states that the existence of historically multilingual states does not contradict his theory, either because there is not a dominant language, or because (their) geographical dimension limits the complexity which cannot be obviated in the European case. The philosopher JOrgen Habermas -also German- contested these arguments. He starts by affirming that he subscribes to some of Grimm's conclusions and that it is necessary to create a "political public sphere to allow citizens to take a stand at the same time on the same issues of the same relevance." Though, instead of giving too much importance to language disparity, he insists on giving a priority to the setting up of European associative and political structures such as parties, trade unions, NGOs, etc., to vertebrate "a public communication that transcends the boundaries of those so far limited national public spheres." What is more, he also criticises Grimm for his too static vision of national-linguistic realities which are undoubtedly not so homogeneous or rigid. 3 Mercator Working Papers num. 5 Linguistic Legislation This was the debate. I have highlighted it as I think it contains some of the keys to the real questions that arise -in both theory and practice- on the linguistic issue. I personally think that both authors share part of the truth, although I am more inclined towards Habermas' opinions for at least two reasons: 1.- Despite the existing difficulties, it is obvious that European institutions need to be democratised and this will require at certain moments strong voluntary acts. 2.- The mere existence of a constitution generates a collective identity that can help to overcome those fears manifested by Grimm. Nevertheless, what is more important here is the reflection we may make on the "irruption" of the linguistic question within the core of the debate on Europe's political future. Such reflection made from a [multilingual context]- acquires significant features. Let me explain myself: should we follow the same line of reasoning of the authors both German, by the way, which means that they live in a nearly monolingual state reality except for the immigrants [and some minorities]-, then we must realise that those who define linguistic pluralism as a problem also stress "community" and "identity" values, whereas those who look with relativity the importance of the question do it from a more "societary", or rather "artificial" viewpoint. I think that this reality somehow inverts the terms of the argument used in order to defend linguistic pluralism within the Spanish state. This reflection means one thing only: we will probably have to leave behind many of the certainties we have made use of until the present time. In other words, flexibility of thinking will be the best device to face new realities. After these previous considerations we may now focus on the second preliminary idea that was mentioned at the beginning of this work: the peculiarity of the juridical forms concerning the European construction i. e. Treaties- in their effect on the definition of the official status of languages. I propose to try to avoid legal technical terms although it will be necessary to make some remarks that may be summarised in the following way: 1- Usually, the definition of one or several- languages as the official one/s is included in the Constitution of states. Regardless of the precision of such definition, western juridical culture has been continuously redefining the specific effects of it. A good example of this juridical consensus is the Sentence from the Spanish Constitutional Court 82/1986, of June 26th, which stated that "a language is official when, regardless of its reality and weight as a social phenomenon, it is recognised by public powers -within and amongst them- and in their relation to private subjects, with 4 6 Mercator Working Papers num. 5 Linguistic Legislation full validity and juridical effects." The development of this principle is, obviously, another story in several aspects. 2- The inclusion in the Constitution of a definition on the official status-as it happens in other cases- means that formal and material prominence is given, surpassing other subsequent possible norms which in no case can abolish or infringe the definition included in the constitutional text which, in addition, will have specific jurisdictional protection. Constitutional reforms are, on the other hand, far more complicated than those concerning any other juridical norm. 3- This does not occur in respect to Treaties: these are incorporated into the legal system of the state that signs them, although it is, in short, like a law that may be quite easily modified and which does not imply the activating of constitutional reforming processes, regardless of the fact that political reforms concerning such important issues in the EU may be politically complex. 4- As regards this question, as is the case in any others, there occurs a de facto overlapping between community norms and constitutional and legal definitions from member states, including the Spanish state which, by the way, has one of the most complex and respectful legal systems - concerning linguistic pluralism- of all the EU states. As we will now see, the definitions on official languages made by the EU are restricted to events and relations between the community structure and do not affect other aspects of those usual effects arising from the declaration of the languages' official status. In other words, we may talk about the official status of languages within European institutions, but we cannot strictly assimilate them into the concepts we usually make use of when we deal with, say, the Spanish Constitution or Statutes of Autonomy of those communities that it is made up of. We should bear in mind that such normative overlapping entailing theoretical contradictions does not actually pose real big problems from a juridical viewpoint. What the future may bring isanotherstory as well. 2. The system of linguistic officiality in the European Union 5 7 Mercator Linguistic Legislation Working Papers num. 5 Starting from these premises we may now move onwards through a simple description of the way in which linguistic officiality has been regulated in community institutions2. Up to now, the main reference text as regards the current stage of the European construction process is the "Treaty of the Union". The linguistic question, however, is hardly mentioned in it3. Despite all this, we should remember that the Treaty of the Union does state that this is founded on the European Communities -that is to say, those which were constituted by means of particular Treaties. The first of these Treaties was the one establishing the European Coal and Steel Community of 1951, which does not allude to linguistic provisions; its text is written in French though the following year the ministers of Foreign Affairs of signatory states agreed that the official languages of the community should be French, German, Italian and Dutch, by which a precedence was set, and it is still effective nowadays: official languages of the Communities are declared to be the official ones within their Member States. A reference to this principle was already included in the treaty establishing the European Atomic Energy Community of 1957. According to the authorisation established by the preceding Treaties, the basic rule which is regarded to be effective is Council Regulation No 1, of 15th April, 1958. We may summarise this regulation as follows: 1 - It sets up the double concept of "official languages" and "working languages" which apply to the four languages that were official in the Member States at that time. (Art. 1) 2 - All texts sent to European EEC institutions by Member States, or else by individuals subject to the jurisdiction of a Member State, may be drafted in the language chosen by the sender, who will be entitled to be replied to in the same language (Art. 2). We note that the state is not obliged to use "its" official language. 3 - All texts submitted by EEC institutions to Member States or to individuals subject to a Member State jurisdiction shall be written in the language of the aforesaid state (Art. 3). 2 For this presentation will specially follow: A.MILIAN MASSANA. "Le régime linguistique de l'Union I Européene : le régime des institutions et l'incidence du droit communautaire sur la mosaI que linguistique européene". In: Rivista di Diritto Europeo, nr. 3, Rome, 1995. 3 Article 149 of the Treaty, devoted to education, says: "1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and complementing their action, while fully respecting the responsibility of the Member States for the contents of teaching and the organisation of education systems and their cultural and linguistic diversity". And as a specific action in Section 2: "-developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States". Apart from this, Article 151 mentions as well cultural pluralism. 6 Mercator Linguistic Legislation Working Papers num. 5 Regulations and other general texts, as well as the Official Journal of the Community, shall be 4 written in the four official languages (Arts. 4 and 5). 5 - The diverse specialised institutions of the EEC may determine in their internal rules of procedure the modalities of application of such linguistic status (Art. 6), as well as the languages to be used in proceedings of the Court of Justice (Art. 7). 6 - In states where more than one language exists, the use of a language shall be governed by the general rules of the state's legislation (Art. 8). The accession of new Member States will obviously widen the list of both "official" and "working" languages. Despite this fact it is necessary, however, to point out one exception for the record. As a matter of fact, Ireland's incorporation to the EEC did not result in a full officiality for Irish, although the Irish Constitution itself defines it as the national language and "first official language", whereas English is the "second official language". Certainly, the non-recognition of Irish means a breaking of the principle originally established, though it should not be considered an absolute dismissal since the English language is also an official language in Ireland. The ultimate conclusion is that the last drafted version of Regulation nr. 1 of the Council after the last adhesions- is: "The official languages and the working languages of the institutions of the European Union are German, English, Danish, Spanish, Finnish, French, Greek, Italian, Dutch, Portuguese and Swedish" and the Official Journal is also published in these languages as well as the UE general legal proceedings. We should recall that within such a general principle, every institution has a certain capacity for modulation. The next section will deal with the accords reached as regards the main institutions. a) The Council Its internal rules of procedure specify in Article 10 that the Council shall only deliberate and take decisions on the basis of documents and drafts drawn up in the languages envisaged in the rules in force governing languages, except for the cases in which the contrary may be unanimously accorded, or on grounds of emergency. This legal system is also followed regarding discussions on possible amendments. It should be reminded that such a principle does not result in the use of all official languages. As a matter of fact, documentation is in many cases only drafted in French, English and sometimes in German. 7 9 Linguistic Legislation Mercator Working Papers num. 5 b) The Commission In this case, norms are laid down in Article 18 of its internal rules of procedure, reformed by decision of the Commission itself on March 8th, 1995. This article rules that the minutes of a meeting shall be attached in such a way that they cannot be separated, in the language or languages in which they are "authentic" (in juridical terms), to the Commission's minutes of the meeting. As occurs in the case of the Council, the documentation related to the Commission's debates are mainly drawn up in some of the official languages. c) The Parliament Its Regulations establish the general principle that all Parliament's documents shall be drawn up in all official languages. This refers either to emergency sessions, as to the oral development of the sessions or the minutes including previous considerations, etc. that usually have never been uttered in sessions. On the other hand, paragraph 2 of the same article states that speeches delivered in one of the official languages shall be simultaneously interpreted into the other official languages and into "any other language" that the Bureau may consider necessary. We are thus dealing with an exception to the general rule according to which the use of European minority languages as well as others, in principle- is possible within the Parliament, whenever its ruling bodies consider it appropriate, and thus following a practice established in international bodies. Finally, one should bear in mind that, by virtue of Article 150.4, all that has been previously said concerning the Plenary of the Parliament shall also be applicable to the Committee's meetings. What is more, it is also obvious that the Right to Petition devoted to in Article 138 D of the Treaty of the Union, for all physical or legal persons, may be exercised in any of the official languages. d) The Court of Justice 8 1 0