Languages as a Barrier to Free Movement of Persons in the European Union
Iris Goldner Lang
Faculty of Law, University of Zagreb (Croatia)
Languagesin the EU have bothpositive and negative implications. They can be viewed as rights, on the one hand, and as barriers, on the other hand. The proclaimed protection of cultural and linguistic diversity of the EU Member States and certain language requirements can sometimes limit or impede market freedoms in the EU. This paper will discuss languages both as rights and barriers in the EU. It will first take a look at their role as individual, group and state rights and then concentrate on languages as barriers to free movement of people in the EU. According to EC law, the requirement of language knowledge can be justified when “necessary for practising the profession in the host MemberState” or when “required by reason of the nature of the post to be filled”. The paper will trace the rule of “necessity” in the light of the case-law of the European Court of Justice (ECJ). It will try to detect how to balance free movement of persons and acceptable linguistic limitations to such freedom. The last part of the paper will address the issue of languages as barriers in a case-study in the field of sport. The author will try to argue that the new language rule of the Ladies Professional Golf Association, which will require all players to speak English or face suspension, could be contrary to EC law, since it could create unjustified and disproportionate discrimination in the field of sport. The author will explain the connection between the language rule of the golf association and EC law and provide arguments claiming that the case is within the scope of EC law.
Keywords:languages, EU, free movement of persons, barrier, non-discrimination.
1. Introduction
The European Union is a multilingual and multicultural community where 23 official and some 60 more languages co-exist in one geographical area. Past enlargements, expanding the Union to 27 MemberStates and almost500 million inhabitants, have increased linguistic and cultural diversity of the EU. The EU internal market grants EU citizens the right to move freely to other MemberStates as workers and their family members, self-established persons, providers of services, students, retired persons or just for the purpose of leisure. When crossing state borders, EU citizens are usually also crossing language borders, which can thus become barriers to free movement of people. Such potential problems stress the need for an EU policy on multilingualism.
According to its Communication from 2005 entitled «A New Framework Strategy for Multilingualism», the Commission's multilingualism policy has three aims: 1) to encourage language learning and promote linguistic diversity in society, 2) to promote a healthy multilingual economy, and 3) to give citizens access to European Union legislation, procedures and information in their own languages.The European Commission established a separate Directorate General (DG) for multilingualism on 1 January 2007 to reflect the political dimension of multilingualism in the EU. Another reason was that it probably lacked portfolios for new Commissioners after Bulgaria and Romania joined the Union in 2007, so the post of a new Commissioner for Multilingualism was entrusted to Leonard Orban, a Romanian national. The motto «united in diversity», which was adopted in 2000, reflects the idea of European integration, while preserving cultural and linguistic diversity of EU citizens. On the other hand, the existence of so many different cultures and languages in the EUhighlights the need for a common European identity, which seems to be weak if not completely deficient in the EU nowadays.
Languages in the EU have both positive and negative implications. They can be viewed as rights, on the one hand, and as barriers, on the other hand. The proclaimed protection of cultural and linguistic diversity of the EU Member States and certain language requirements can sometimes limit or impede market freedoms in the EU. This paper will discuss languages both as rights and barriers in the EU. It will first take a look at their role as individual, group and state rights and then concentrate on languages as barriers to free movement of people in the EU. According to EC law, the requirement of language knowledge can be justified when “necessary for practising the profession in the host MemberState” or when “required by reason of the nature of the post to be filled”. The paper will trace the rule of “necessity” in the light of the case-law of the European Court of Justice (ECJ). It will try to detect how to balance free movement of persons and acceptable linguistic limitations to such freedom. The last part of the paper will address the issue of languages as barriers in a case-study in the field of sport. The author will try to argue that the new language rule of the Ladies Professional Golf Association, which will require all players to speak English or face suspension, could be contrary to EC law, since it could create unjustified and disproportionate discrimination in the field of sport. The author will explain the connection between the language rule of the golf association and EC law and provide arguments claiming that the case is within the scope of EC law.
2. Languages as Rights
Languages can be perceived as rights at three different levels: individual, group and state level. As the right of individuals, languages are the most manifest demonstration of one's identity. As stated in the Commission Communication entitled «A New Framework Strategy for Multilingualism», “language is the most direct expression of culture; it is what makes us human and what giveseach of us a sense of identity”. Second, discrimination based on language is prohibited in the Union. Article 22 of the Charter of Fundamental Rights of the European Union stipulates that the Union shall respect cultural, religious and linguistic diversity. Article 21 of the Charter prohibits discrimination on a number of different grounds, including language.
The principle of non-discrimination as regards language rights is also visible in the case-law of the ECJ. In cases 137/84 Mutsch and C-274/96 Bickel & Franz, the Court stated that language rights granted by a Member State to its own national must be extended to other EC nationals. Both cases were about the use of language, which was not the principal language in that MemberState in the criminal proceedings against nationals of another MemberState. In both cases the accused requested that the proceedings be conducted in another language since he had no knowledge of the principal language of the MemberState concerned. In Mutsch, Mr. Mutsch was a Luxembourg national residing in a German-speaking municipality in Belgium. In the criminal proceedings against him, Mr. Mutsch relied on Belgian law on the use of languages in the courts, according to which where an accused person of Belgian nationality resides in the specified German-speaking municipality and so requests, the proceedings before the court shall be conducted in German. The Belgian court was uncertain whether only Belgian nationals could rely on this provision or whether Mr. Mutsch, who was a Luxembourg national, had the same right. In its judgment, the ECJ stated that “the principle of free movement of workers requires that a worker, who is a national of one Member State and habitually resides in another Member State, be entitled to require that criminal proceedings against him take place in a language other than the language normally used in proceedings before the court which tries him, if workers who are nationals of the host Member State have that right in the same circumstances”.
In Bickel & Franz, Mr. Bickel was Austrian and Mr. Franz was German and they both requested the proceedings to be conducted in German instead of Italian. It is important to note that the proceedings were taking place in Bolzano, an Italian province where German has the same status as Italian and where domestic citizens have the right to use German in relation to judicial and administrative bodies based in that province. In its judgment, the ECJ relied on Art. 12 of the EC Treaty, which prohibits any discrimination based on nationality. It stated that Art. 12 EC “precludes national rules which, in respect of a particular language other than the principal language of the Member State concerned, confer on citizens whose language is that particular language and who are resident in a defined area, the right to require that criminal proceedings be conducted in that language, without conferring the same right on nationals of other Member States travelling or staying in that area, whose language is the same”. However, the Court has not clarified which level of proficiency is necessary for a language to be ascribed to a person, i.e. whether he/she must be able to speak the language or just understand it, in order to rely on this rule (Creech 2005: 119-120).
Cases Mutsch and Bickel & Franzconfirm the rule that a MemberState may not treat nationals of other Member States differently than its own nationals as regards the right of use of language in the criminal proceedings. Bickel & Franz shows that the principle of non-discrimination applies also to cases when the individual concerned is not resident in that MemberState. Unlike inMutsch, where the Court relies on the provisions of free movement of workers, inBickel & Franzthe ECJ uses Article 12 EC as the legal basis for its judgment. However, it remains unclear whether, by relying on Art. 12 EC, as the provision that prohibits any discrimination based on nationality, the Court is actually equating non-discrimination on the basis of nationality and non-discrimination on the basis of language (Creech 2005: 121-122), or saying that the principle of non-discrimination on the basis of languages is contained within the principle of non-discrimination on the basis of nationality. Finally, the principle of non-discrimination on the basis of language in criminal proceedings should be equally applicable to civil proceedings (Creech 2005: 122).
The third manifestation of languages as individual rights in the EU is the right to language learning. EU institutions are strongly supporting and encouraging language learning by a number ofprogrammes and initiatives in this area, while 2001 was declared the European Year of Languages.However, most university students through the Erasmus programme tend to continue their studies in those countries where the most popular languages are spoken, while citizens seem to be reluctant to learn less popular languages (López de Luzuriaga 2006).According to Special Eurobarometer 243 “Europeans and their Languages” from 2006, 53% of EU citizens think that knowing languages other than your mother tongue is very useful, while 30% think it is fairly useful. Furthermore, 56% of EU citizens are able to hold a conversation in one language apart from their mother tongue, 28% in two more languages and 11% in three more languages apart from their mother tongue. Such data show the existence of public awareness about the benefits of language learning.
Consumer protection is another area where languages as individual rights come into play. According to Directive 2000/13 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs -labelling should provide clear information in a language easily understood by the consumer and must not mislead the purchaser to a material degree.Additionally, Unfair Commercial Practices Directive 2005/29 protects consumers concerning the language used in after-sales service. In its case-law on labelling of foodstuffs, the ECJ has interpreted the relevant provisions of Directive 2000/13 extensively, thus enabling a higher degree of consumer protection. In case C-315/05 Lidl Italia the Court concluded that relevant provisions of Directive 2000/13 do not preclude the liability of a distributor (and not just producer) of a product, in case of an infringement of labelling instructions contained in the Directive. In such a case the distributor can be penalized by an administrative fine, even where it just markets the product, pre-packaged and delivered to it by the producer from another MemberState. As regards Lidl Italia’s claim not to be able to know whether or not the label affixed to the packaging by the producer contains true information and not to be able to do anything about it, the Court stated that “it is for the national law to lay down the methods by which a distributor may be held liable for infringement of obligations as regards labelling” and “to regulate the apportionment of respective liability between the different operators involved in the marketing of the foodstuff in question”.
In his Opinion in this case, Advocate General Stix-Hackl elaborated that a further argument in support of the proposition that also the distributor can be held liable is the fact that the information which appears on the label can be drafted in a language different from that of the manufacturer. According to the Advocate General such a possibility leads to the conclusion “that the distributor plays an important role in guaranteeing compliance with the rules on labelling, that is to say in ensuring that the ultimate consumer receives all the necessary information on the product offered for sale in a language which he easily understands, although, admittedly, this says nothing about whether the distributor can also be held liable for the substantive accuracy of the particulars concerned”.
Another very important manifestation of languages as individual rights is the right of EU citizens to access EU law and communicate with EU institutions in their own languages. Since EU primary and secondary law is binding on EU citizens, reasons of transparency and democracy require that citizens are able to read EU law and communicate with EU institutions in their own languages. As regards the accessibility of EU primary law, Art. 314 EC, Art. 53 EU and the Acts of Accession for the states that acceded to the Union in 2004 and 2007 stipulate that the EC Treaty and the EU Treaty are authentic in all 23 official languages of the EU. As regards the accessibility of EU secondary law, Art. 4 of the amended Regulation 1/1958 determining the languages to be used by the European Economic Community stipulates that “regulations and other documents of general application shall be drafted in the official languages”. Furthermore, Art. 5 of Regulation 1/1958 states that “the Official Journal of the European Union shall be published in the official languages”. Furthermore, in its case 283/81 CILFIT, the ECJ repeated that different language versions of EC legislation are all equally authentic. It continued that an interpretation of a provision of EC law involves a comparison of the different language versions, while interpretation has to be done in a teleological and not literal way.
EU citizens have the right to communicate with EU institutions in their own languages. According to Art. 21 EC and Art. 2 of Regulation 1/1958, EU citizens may use all Treaty languages when approaching EU institutions. However, there is no generally applicable principle of equality of languages that binds all EU bodies. According to case 361/01Kik, the right to communicate in one’s own language applies only to EU institutions and bodies listed in the Treaty. Accordingly, these institutions and bodies are: the European Parliament, the Council, the Commission, the ECJ, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the Ombudsman.As the Court stated, there is no “general principle of Community law that confers a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances”.
Apart from its manifestation as individual rights, language rights can also be perceived as group and state rights. One of the most distinct manifestations of languages as group rights are minority language rights, which are not going to be analysed in this paper (Nic Shuibhne 2001: 61-77; Dunbar 2001)). On the other hand, at state level, the Union grants Member States formal equality of their official languages. However, it is noteworthy that not all the official languages of its Member States are official languages of the European Union, Catalan and Basque being two such examples (Urrutia &Lasagabaster 2007: 483).
Formal equality of all Member States is visible in four facts, which have been discussed previously. First, the Treaties are equally authentic in all official languages of the EU. Second, all secondary law of general application has to be drafted in the official languages, while the Official Journal has to be published in the official languages. Thirdly, EU citizens have the right to approach EU institutions and bodies (though, only those listed in relevant articles of the Treaty) in their own language. Finally, the European Union has 23 official and working languages of the institutions. Such status has been attributed to Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish by Regulation 1/1958 and its amendments contained in Regulation 920/2005 amending Regulation 1/1958,Regulation 1791/2006 and Acts of Accession. Thus,Irish Gaelic was also declared an official and working language in 2005 with effect deferred until 1 October 2007. However, EU institutions were given the right, for a renewable period of five years, not to draft all acts in Irish and publish them in that language in the Official Journal.
However, formal equality does not necessarily always imply practical equality of all EU official languages. In everyday practice, EU institutions internally mostly use English, French and, sometimes, German. Furthermore, the EU of 27 Member States has to bear a heavy burden of financing translation and interpretation for 23 official languages (with the exception of the Irish Gaelic). The process of translation adds to thecomplexity and duration of different procedures in the Union.However, so far no initiative has been successful in reducing the number of official languages in EU institutions. In a debate organised by the European Commission, Prof. Abram de Swaan has suggested that multilingualism is a “damned pain in the neck […] leading to an impoverished political debate, and, curiously, it is the very usage of a multiplicity of languages that is leading to the dominance of English” (Küchler 2008). Some scholars suggest that the language issue in the EU today is one of the prominent challenges to supranational integration (Palermo 2006).