Respecting Linguistic Diversity in the European Union (Studies in World Language Problems, Volume 2)

Respecting Linguistic Diversity in the European Union

Studies in World Language Problems Studies in World Language Problems (WLP) focuses on political, sociological, and economic aspects of language and language use. It is especially concerned with relationships between and among language communities, particularly in international contexts, and in the adaptation, manipulation, and standardization of language for international use. It aims to publish monographs and edited volumes that deal with language policy, language management, and language use in international organizations, multinational enterprises, etc., and theoretical studies on global communication, language interaction, and language conflict. Published in cooperation with the Centre for Research and Documentation on World Language Problems.

General Editor Humphrey Tonkin University of Hartford

Editorial Board E. Annamalai

François Grin

Richard B. Baldauf, Jr.

Kimura Goro

Ina Druviete

Timothy Reagan

Central Institute of Indian Languages & Yale University University of Queensland University of Latvia

University of Geneva Sophia University, Tokyo Central Connecticut State University

Mark Fettes

Simon Fraser University, Vancouver

Volume 2 Respecting Linguistic Diversity in the European Union Edited by Xabier Arzoz

Respecting Linguistic Diversity in the European Union Edited by

Xabier Arzoz University of the Basque Country

John Benjamins Publishing Company Amsterdam / Philadelphia

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The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences – Permanence of Paper for Printed Library Materials, ansi z39.48-1984.

Library of Congress Cataloging-in-Publication Data Respecting linguistic diversity in the European Union / edited by Xabier Arzoz. p. cm. (Studies in World Language Problems, issn 1572-1183 ; v. 2) Includes bibliographical references and index. 1. Multilingualism--Europe. 2. Language policy--Europe. 3. European Union. I. Arzoz, Xabier. P115.5.E85R48    2008 306.44'6094--dc22 isbn 978 90 272 2833 8 (Hb; alk. paper)

2007036244

© 2008 – John Benjamins B.V. No part of this book may be reproduced in any form, by print, photoprint, microfilm, or any other means, without written permission from the publisher. John Benjamins Publishing Co. · P.O. Box 36224 · 1020 me Amsterdam · The Netherlands John Benjamins North America · P.O. Box 27519 · Philadelphia pa 19118-0519 · usa

Table of contents Preface Xabier Arzoz Introduction: Respecting linguistic diversity in the European Union Xabier Arzoz

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Part 1. Factual and theoretical approaches chapter 1 Linguistic diversity as curse and as by-product Philippe Van Parijs

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chapter 2 Linguistic diversity in the European Union: An overview Patxi Juaristi, Timothy Reagan and Humphrey Tonkin

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chapter 3 Principles of policy evaluation and their application to multilingualism 73 in the European Union François Grin chapter 4 A one-dimensional diversity? European integration and the challenge 85 of language policy Peter A. Kraus Part 2. The protection of linguistic diversity in EU law chapter 5 Union citizenship and language rights Peter Hilpold

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chapter 6 EC law and minority language policy: Some recent developments Niamh Nic Shuibhne

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Table of contents

chapter 7 The protection of linguistic diversity through Article 22 145 of the Charter of Fundamental Rights Xabier Arzoz chapter 8 The protection of linguistic diversity through provisions of the EU Charter other than Article 22 175 Bruno de Witte chapter 9 Languages that are official in part of the territory of the Member States:  Second-class languages or institutional recognition in EU law? Antoni Milian-Massana

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appendix Selected provisions on language issues from EU law

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Contributors

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Index

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Preface Xabier Arzoz

The origins of this book lie in a workshop organised on 24–25 May 2005 in St Antony’s College, University of Oxford, sponsored jointly by the Basque Studies Society (Eusko Ikaskuntza) and the European Studies Centre of St Antony’s College, Oxford. The organisation of that workshop was the most visible obligation during my Basque Visiting Fellowship at St Antony’s in 2004/05, which was supported by the Basque Studies Society. I am indebted to both institutions, as well as to the participants in the Oxford workshop. My special thanks go to the contributors who kindly accepted an invitation from a young scholar to produce papers for this volume. I would particularly like to thank Jeremy McClancy of Brookes University (Oxford) for his advice and support throughout the workshop. I would also like to express my gratitude to Grégoire Webber (Oxford), Patrick Carlin (Cardiff) and Niamh Nic Shuibhne (Edinburgh), who commented on and checked parts of the book. Finally, I must thank Professor Humphrey Tonkin, the general editor of the series, for his engaged and supportive editorial management in the process of preparing the manuscript for publication. At the time of the workshop, after the accession of ten new Member States in 2004, the number of official EU languages had increased from eleven to twenty. Immediately after the workshop took place, on 13 June 2005, the Council of the European Union authorised an improvement of the existing legal framework for Irish (the twenty-first official language from 2007 on) and for other languages, such as Basque, Catalan and Galician, which, according to the constitutional order of their respective Member States, are official in all or part of the territory of those Member States. Later, in September 2006, Bulgaria and Romania were definitively accepted as new Member States as of 1 January 2007, with the consequence that the number of EU official languages has again increased, to 23. These events highlight the urgency of the EU search for guidance in addressing its internal linguistic diversity. Although the European scene has continued to change rapidly, especially over the past few years (for example, the innovations concerning Irish and the use

viii Preface

of other languages, the accession of two new Member States, and the collapse of plans for the European Constitution), all the original papers have been updated with the latest developments. Subject areas not covered in the original workshop have also been added, making the publication more complete. Each chapter has been written by a recognised expert in the field. The Charter of Fundamental Rights of the European Union is cited throughout the volume in accordance with its original numeration. Its text was solemnly proclaimed by the three EU institutions in Nice in December 2000 and it preserves its value as a political declaration. The Charter provisions received a new numbering system in the Intergovernmental Conference after their incorporation as Part II of the Treaty establishing a Constitution for Europe (beginning with Article II–61). After two years of uncertainty over the Union’s treaty reform process, the European Council decided at its meeting of 21–23 June 2007 to abandon the ratification process for the Treaty establishing a Constitution for Europe. Following this mandate, the Presidency of the Council convened an intergovernmental conference for the purpose of determining by common accord the amendments to be made to the Treaties on which the European Union is founded. The “draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community” (CIG 1/07) submitted to the intergovernmental conference includes the provisions and the declaration on languages that were contained in the Treaty establishing a Constitution for Europe. Consequently, these provisions and the declaration will very probably be incorporated in the future Treaty. The new “draft Treaty” also recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, and it foresees that the Charter will have the same legal value as the Treaties. This book aspires to contribute to our understanding of the challenge of respecting linguistic diversity within the EU. It is intended as a useful introduction to the issue for those not already familiar with EU law and, at the same time, it aims to provide an analysis of the potential of the Charter of Fundamental Rights of the European Union to enhance respect for linguistic diversity. The appendices are an attempt to give access to the most basic legal norms concerning linguistic diversity within the EU institutions. October 2007

Introduction Respecting linguistic diversity in the European Union



Xabier Arzoz The rise of concern for cultural and linguistic diversity Concern for cultural diversity, of which linguistic diversity is a fundamental element, is increasingly being raised in the international arena and in the research sphere, most likely because of awareness of the far-reaching effects of globalisation. For some time, cultural diversity was an issue that concerned only the sociopolitical movements of non-dominant groups confronting the phenomenon of acculturation within the societies where they lived. The nation-state as it evolved following the French Revolution was considered the natural enemy of minorities. Now, it would seem that globalisation and regional supranational integration are emerging as processes that cause similar concern among the populations of nation-states. Paradoxically, fear of the effects of globalisation is a cause that reunites, in an odd coalition, actors that were separate or even opposed before, namely “state-led nations” on the one side, and “state-seeking nations” and ethnic groups on the other. The globalisation of the economy tends to homogenise or to sweep aside cultural obstacles to the standardisation of goods and practices required by the market, whatever the origin of those cultural obstacles, whether cultural practices and forms or legal requirements imposed by national legislators. There appear to be two complementary lines of thought behind the rising concern for cultural diversity, which have also been picked up by international organisations such as UNESCO and, to some extent, the Council of Europe. One line of thought concerns more generally the need for protection of cultural diversity as an “ethical imperative”.1 On 2 November 2001, the Universal Declaration on Cultural Diversity was adopted unanimously by the 185 member states represented at the thirty-first session of the UNESCO General Conference in Paris.2 This instrument recognises, for the first time, cultural diversity as a “common heritage of humanity” and considers its safeguarding to be an “ethical imperative, inseparable from respect for human dignity”. Article 1 proclaims:



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Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.

The fact that the Declaration came in the wake of 11 September 2001 should not diminish its importance: independently of the aim of promoting intercultural dialogue for the sake of peace and mutual understanding, it recognises the link between culture and human dignity and the right to enjoy and develop multiple identities, and it stresses the key relevance of human rights, including the rights of persons belonging to minorities, for preserving cultural diversity. The Universal Declaration is seen by UNESCO as the founding act of a new ethic in relation to cultural diversity. In fact, only four years after the Declaration’s adoption, on 20 October 2005, a Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted at the 33rd session of the UNESCO General Conference.3 This instrument recognises the need to take measures to protect the diversity of cultural expressions, including their contents, especially in situations where cultural expressions may be threatened by the possibility of extinction or serious impairment. The Convention reaffirms the Parties’ sovereign right to formulate and implement their cultural policies, to adopt measures to protect and to promote the diversity of cultural expressions, and to strengthen international cooperation to achieve the purposes of the Convention: “When a Party implements policies and takes measures to protect and promote the diversity of cultural expressions within its territory, its policies and measures shall be consistent with the provisions of this Convention” (Art. 5). The Convention recognises the right of the Parties to adopt “measures that, in appropriate manner, provide opportunities for domestic cultural activities, goods and services among all those available within national territory for the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services” (Art. 6.2 (b)). From a more general perspective, it is interesting to stress here three of the eight “guiding principles” set out in Article 2 of the Convention: 1. Principle of respect for human rights and fundamental freedoms Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are



Introduction

guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. 3. Principle of equal dignity of and respect for all cultures The protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. 6. Principle of sustainable development Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations.

The Convention, which will enter into force three months after the date of deposit of the thirtieth instrument of ratification, is open for accession also by any regional economic integration organization such as the EC/EU. Therefore, in the event of an accession by both the EC/EU and one or more of its Member States, there could be a distribution of responsibility for the performance of their obligations under the Convention.4 The other line of thought behind the rising concern for cultural diversity refers to the more specific field of linguistics. Since the early 1990s, there has been a universal upsurge of professional linguistic concern about the unprecedented scale of language death facing the world.5 According to estimates, half of the world’s 6,000 languages will die in the next 100 years.6 It is itself a statistic at least as impressive and worrying as the estimated damage caused by the greenhouse effect in an equivalent period of time. Part of the contemporary emphasis on the issue of endangered languages is ecological in character, focusing on the relationships between people, their environment, and their thoughts and feelings (see Crystal 2000: 25, 32–36 and Skutnabb-Kangas 2003). In this sense, it is claimed not merely that diversity is as necessary for humankind as biodiversity is for nature (as the UNESCO Universal Declaration, mentioned above, seems to argue), but that linguistic diversity is an integral part of biodiversity.7 This does not mean that linguistic diversity operates in the same way as biodiversity, or that similar forms of legal protection should apply to them. There are fundamental differences between languages and living species, as the former are socio-cultural goods. The major conceptual difference consists of transmissibility and accumulation: we can acquire a language but we cannot get wings; we can acquire many languages but, if we get wings, we lose our arms (Junyent 2002: 14).





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However, concern about the loss of language diversity does not reach the same level of concern as the loss of biodiversity.8 Even the many socio-political movements claiming territory or rights for a language seek to replace the dominance of one language with another, and do not seek diversity for its intrinsic value (Annamalai 2004: 2). Annamalai has reflected on the political and philosophical reasons for public indifference to language diversity. First, “the technologically driven, socially stratified and centrally administered social system [is] conducive to language homogeneity.” In other words, the economic and political supremacy of certain communities is transferred to their language. But Annamalai’s second reason deserves a more careful reflection, since it associates the prevailing “western” or “modern” attitude with both nature and linguistic diversity and contrasts it with the alternative philosophical view of traditional societies. For Annamalai, “the western languages, which embody the philosophical position of subordinating nature to the quest of human progress, facilitate a way of speaking and thinking that values reduction of diversity as the means to progress through increased efficiency.” As the sociolinguist Mackey (1991: 57) rightly observes, “as for all systems, language as it spreads, tolerates fewer conflicting standards.” The process of European integration shows expansionist standardising tendencies in the field of communications, economics, social protection and justice. Is language to be handled according to the same criteria? The efficiency discourse is one we frequently hear in the context of EU multilingualism.

Concern for linguistic diversity within the EU The proportion of global linguistic diversity which attaches to Europe is comparatively small (ca. 3–4%); it is even smaller if we concentrate on the European Union and exclude the overseas countries and territories of the Member States (ca. 1%). Europeans have always been conscious that linguistic differences exist among them and between them and other peoples (Martinell Gifre & Cruz Piñol 1996, Burke 2004 and Mackey 1991: 5–61). In fact, nation-building in Europe was based primarily on linguistic terms: modern nations are basically “linguistic nations” in the sense that having a common language was the instrument and the symbol of each nation-state.9 The emergence of the European Union as a supranational entity has not modified this situation. On the contrary, concern for cultural and linguistic diversity appears to be rising precisely within the EU. It is difficult to say to what extent concern for linguistic diversity has been influenced by the aforementioned general arguments (diversity as an “ethical imperative” and as an “ecological necessity”) or by internal developments such as the processes of regionalisation in some member states, the ethnic tensions in



Introduction

central and eastern Europe and the successive enlargements of the EU. It is certain that, as in any region of the world, languages are dying and disappearing in Europe too.10 Traditionally the protection of linguistic diversity was considered to be an issue outside the European Union’s competences and tasks. In fact, the most interesting legal developments in this field, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages, are regional instruments of the Council of Europe. These legal instruments represent the most advanced notion of minority protection existing in the world. Some recent developments illustrate that concern for linguistic diversity and for the challenges of multilingualism within the EU is increasing. As those developments are related to one another, the following exposition does not necessarily imply a causal sequence of events. First, there is a movement towards giving a more central position to the value of linguistic diversity within the EU. The Charter of Fundamental Rights of the EU, which was proclaimed in December 2000, committed the Union to respecting cultural, religious and linguistic diversity (Art. 22). Furthermore, the Treaty establishing a Constitution for Europe establishes “United in Diversity” as the motto of the Union and includes explicitly among the Union’s objectives respect for “its rich cultural and linguistic diversity” and ensuring that “Europe’s cultural heritage is safeguarded and enhanced” (Art. I–3(3)). It is not clear whether, and to what extent, a concern for linguistic diversity could be mainstreamed, on that basis, in the framework of the Union’s policies; nor is it clear whether the institutions of the Union could prompt the Member States to take that concern into account in the implementation of Union law and policies. The phrase “cultural and linguistic diversity” also appears in another provision of the Constitutional Treaty, in the context of the common commercial policy, in relation to the conclusion of international agreements in the field of trade in cultural and audiovisual services that “risk prejudicing the Union’s cultural and linguistic diversity” (Art. III–315.4 (a)). Second, the successive enlargements of the EU have caused the number of EU official languages to rise from four to twenty-three. As long as new candidates are available and willing to join the EU, the expansion of the number of EU official languages seems likely to increase accordingly. However big this number may appear, it constitutes only a tiny part of the European linguistic mosaic: the Union embodies twenty-seven Member States and 490 million people who speak over 60 European autochthonous languages. The privileged status of the appointed twenty-three “official languages” contrasts sharply with the unprivileged status of the majority of languages spoken within the borders of the EU. The contrast became sharper when languages with even smaller numbers of speakers acceded





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to the EU. These arrangements may have the effect of touching on the self-esteem of linguistic communities whose native languages are not given equal status. At issue is the symbolic affirmation of national languages on equal terms. Malta, for example, insisted on its equal right to include Maltese among the official and working languages of the Union, although its population could also be served through English (Malta’s other national language according to its Constitution11). If Maltese is included, with Malta having 400,000 inhabitants, what should legally and politically prevent Ireland and Luxemburg from asking for the same treatment for Irish12 and Lëtzebuergesch, national languages of those Member States? However, the EU official language status is not limited to the issue of symbolic affirmation. Apart from the number of positions for translators and interpreters being created, whose main beneficiaries are nationals from the respective Member States, the very decision of translating and publishing every page of the Official Journal provides crucial chances for further development of relatively lesser-used languages, such as Greek, Swedish, Latvian, Lithuanian, Slovenian or Maltese. Languages are not all equally standardised: some languages are more standardised than others (Mackey 1991: 55). The governments of many European states, including those speaking an international language, like France or Spain, spend money on the standardization of the national language (for instance, subsidising reference works or standard encyclopaedias and creating terminology centres to plan and coordinate terminological research). Since EU legal and political acts cover relevant areas of modern life (from the environment to technical standards and new technologies), less standardized languages with EU official status obtain a free development of their language corpus, while the costs of similar efforts for standardization of languages such as Catalan, Basque or Welsh have to be assumed integrally by sub-state authorities. On the other hand, it is odd that the language arrangements of a supranational polity are based, in practice, exclusively on national interests and sovereign considerations of the Member States, without taking into account the relative size of each language and the communicative needs of EU citizens (see Milian-Massana 2004; Creech 2005: 153). It is up to the Member States to decide freely what language(s) will be accorded the status of official language(s) within their jurisdiction. Since a unanimous decision of the Council is required to determine the rules governing the languages of the EU institutions,13 the choice of each Member State automatically becomes an official language of the Union, unless, apparently, the Member State in question renounces, for whatever reasons, the inclusion of one or more of its national languages (as was the case for Ireland with regard to Irish, from its accession in 1973 until 2005, Luxemburg with regard to Lëtzebuergesch from 1984 to date, and Cyprus with regard to Turkish from its accession in 2004).



Introduction

That is why the Catalan language does not enjoy official status within the EU, although it is spoken by seven million EU citizens and therefore has more speakers than each of eight of the current EU official languages (Danish, Finnish, Slovak, Slovenian, Lithuanian, Latvian, Estonian and Maltese). Events following the recent vast enlargement of the EU demonstrate that the contrast between privileged and non-privileged status has become sharper. At the request of the Irish Government, the Council decided on 13 June 2005 to amend Regulation No 1/1958 determining the languages to be used by the European Economic Community, which, for more than forty years, had been changed only on the occasion of the successive enlargements (that is, by virtue of primary law): the aim was to accord the Irish language, the first national language of the Republic of Ireland, which had the status of a mere “language of the Treaty”, the status of “official and working language” of the Union, i.e. to accord to it the same status as that accorded to the national official languages of the other Member States.14 Nevertheless, for practical reasons and on a transitional basis, the EU institutions will not be bound to draft and translate all acts into Irish (or, for different reasons, into Maltese), but only the Regulations adopted jointly by the European Parliament and the Council.15 At the same meeting on 13 June 2005, the Council approved some conclusions to govern the use of languages that, although not included in Regulation No 1/1958, enjoy, according to the Constitution of a Member State, official status in all or some part of the respective State territory: the use of additional languages has to be approved by the Council on the basis of an administrative agreement between the Council and the particular Member State, and it will involve the mediation of a mechanism of translation for which cost and responsibility are to be assumed by that Member State. Spain has undertaken to make such agreements with the EU institutions and bodies to allow the use of Catalan, Basque and Galician before them. This solution might also be used for those languages that, although enjoying official status throughout the territory of a Member State, do not possess a number of speakers that justifies a full official and working status within the EU. In many cases, unfortunately, advocacy of linguistic diversity at the supranational level does not correspond with equal advocacy at the state and sub-state levels. Many voices support multilingualism within the EU institutions and the granting of equal status to every Member State language, while they insist on, or are in no way concerned about, cultural and linguistic homogeneity within their nation-states and the preservation of the privileged status of a national language. They are concerned about the impending demise of their national language at the supranational level, but they do not care about the impending demise of minority and regional languages at the sub-state level. There is a double standard here. As





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Fishman rightly observes, “the states are even more reluctant to apply the principle of ethnolinguistic democracy below (or within) the level of the state than they are to set aside the principle of ethnolinguistic equality above the level of the state” (1994: 55). Moreover, the concept of limits (costs, efficiency, workability, manageability and so on) is vociferously put off in one context (the “manageable” supranational case) and prematurely applied in the other (the “obviously unmanageable” intra-state case): “The Netherlands is very certain that Nederlands [Dutch] is as good a language as English for the operation of EC, but it is not sure that Frisian is as good a language as Nederlands for the operation of local public services in Friesland” (Fishman 1994: 55). Some basic principles of fairness for conducting ethnolinguistic affairs are urgently needed to redress these examples of double standards.

The themes of this volume The essays collected in this volume take the background set out above as their departure point. The authors examine the present situation of linguistic diversity and the respect for diversity within the Union. The volume is structured in two parts. The four essays constituting the first part of the book address the issue of linguistic diversity from a multidisciplinary perspective (sociology, economics, and political science). In Chapter 1 of the book, Philippe Van Parijs examines the notion of linguistic diversity. He first distinguishes three dimensions of diversity (richness, evenness and distance) and two levels of linguistic diversity (local and territorial). Then, he analyzes the structural tensions that tend to develop between these levels. With this as background, he argues that linguistic diversity, by itself, cannot plausibly be regarded as a good, all things considered, especially because of its negative impact on the prospects for economic solidarity; but that territorial linguistic diversity will need preserving as the by-product of a concern for the equal dignity of the identities closely associated with native languages. In Chapter 2, Patxi Juaristi, Timothy Reagan and Humphrey Tonkin offer a wide panorama of linguistic diversity within the European Union. European languages are divided into different categories from “big” and “medium” languages to endangered languages, and the European Union’s linguistic diversity (1%) is compared with the world-wide picture. The chapter also introduces five basic linguistic models through which European states attempt to accommodate or reduce the linguistic diversity existing within their borders. François Grin’s contribution, in Chapter 3, proposes an innovative treatment of language regimes, by looking at them as policy options that can be



Introduction

methodically evaluated. The author applies the tools of policy analysis to EU multilingualism, in terms of resource allocation (or efficiency) and of resource distribution (or fairness). The role of policy analysis in general and his discussion in particular aim at providing “tightly argued and solidly documented inputs to the political debate.” Against what is often presented and disseminated unquestioningly, he argues, there is no obviously superior solution in terms of resource allocation. Moreover, from the perspective of resource distribution (linguistic justice), he defends as sensible options some neglected alternatives such as Esperanto. Diversity is not only an appropriate description of the sociolinguistic situation in Europe, but, as Peter A. Kraus puts it in Chapter 4 of the book, it also “has become a pivotal concept in the normative meta-language that we use as Europeans in addressing one another. [...] Thus, in the archipelago of European identities, diversity may be considered to be the waterway uniting what it separates.” Kraus examines this second dimension and addresses the many ambiguities of the EU’s official discourse on linguistic and cultural diversity. In his view, part of the motivation behind the commitment to protect diversity is not high-minded, but “obeys tactical criteria.” It could be “understood primarily as a concession to the importance of the tradition of the national language in Europe.” Thus, diversity is “basically framed as an additive diversity of state languages.” Besides, he reminds us that market integration and diversity follow competing rationales: the meta-language that the process of market integration speaks “ousts the language of diversity in silent but effective ways.” Against the homogenizing instrumentalism of market integration, the author advocates “an innovative political approach allowing the legitimate articulation of difference in a multinational community of Europeans.” The five essays grouped in the second part of the volume focus on the basis and shortcomings of legal protection of linguistic diversity within the EU. In Chapter 5, Peter Hilpold examines the relationship between two concepts that, independently of each other, have undergone a profound evolution in the last decade: EU citizenship and language rights that are awarded to national citizens in some Member States. The author tends to believe that, from the perspective of those who consider linguistic diversity an enrichment of the project of European integration, the legal environment seems now to be far more propitious than before. In his view, Union citizenship harbours a great potential for the future development of language rights in Europe. Paradoxically, while the Community Courts appear to be determined to elaborate progressively the intra-state linguistic dimension of EU citizenship (that is, vis-à-vis the authorities of Member States), they are reluctant to build the supra-state linguistic dimension of EU citizenship (that is, vis-à-vis the non-institutional EU bodies). This is the topic dealt with in Chapter 6. In this chapter, Niamh



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Nic Shuibhne examines recent developments in the field of EC law and minority language policy. She argues that the EU legal framework on language is “a formalistic straitjacket hopelessly unsuited to the reality of EU language needs.” By formally preserving an equality of status for twenty-three languages, the Community system ignores the complexity of language needs and language functions. Meanwhile, however, linguistic hierarchies are intensifying, to the extent that minority languages can no longer be conceptualised as simply those outside the official EU language framework. The author sharply criticises the lack of coherence in EU language planning. She finds worrying that “[w]hile, politically, the Member States have achieved partial expansions of the official language framework […], the Community Courts have meanwhile been moving instead to confine both the scope of that framework and the ideological basis underpinning it.” In particular, Nic Shuibhne comments on the Kik case where the European Court of Justice seems implicitly to reject the proposition that linguistic equality is a general principle of Community law or an inherent aspect of nationality discrimination. Chapter 7, by Xabier Arzoz, offers a preliminary legal assessment of the conditions and limitations under which linguistic diversity is protected by Article 22 of the Charter of Fundamental Rights (“The Union shall respect cultural, religious and linguistic diversity”). It is argued that Article 22 is a minority protection clause, since it addresses the most basic protection needs of minorities. It is further argued that it provides cultural, religious and linguistic minorities with an enforceable right to non-interference on the part of the Union in order to preserve their minority characteristics. This minimum form of protection is consistent with the weak formulation of Article 22. Bruno de Witte analyses in Chapter 8 the potential for promoting and – what may seem less evident – for restricting linguistic diversity through provisions of the EU Charter of Fundamental Rights other than Article 22. Special attention is devoted to the right to “good linguistic administration” in Article 41(4) and to the implications, in Article 21, of the prohibition of discrimination on grounds of language for access to employment and in the workplace, and for language funding by the European Union. Antoni Milian-Massana deals in Chapter 9 with the special situation of languages that are official in all or part of a Member State territory, but lack an EU official status. He analyses these ambivalences of European integration. Although the basic situation remains unchanged, a recent Council Conclusion allowing the exercise of additional languages that, according to the Constitution of a Member State, are official in all or part of its territory, will give some visibility to these languages, such as Catalan, Basque and Galician. This edited collection contains a diverse range of perspectives as well as strong views and arguments on such issues as the convenience of maintaining or reduc-



Introduction

ing the number of official languages within the EU institutions and the possible character of a pan-European language policy. While differences of opinion exist, the contributors appear united in the belief that a culture of linguistic diversity is not only possible within the European Union, but that respect for linguistic diversity would also be a “good thing”, either intrinsically or as a by-product of the pursuit of linguistic justice and equal dignity. This vision of a culture of respect for linguistic diversity that should go beyond the reciprocal recognition of national languages among the Member States could perhaps seem too daring or even too threatening to some people. The objective of a culture of respect for linguistic diversity within the EU has not been achieved so far. Neither the Charter of Fundamental Rights nor the Treaty establishing a Constitution for Europe contains a comprehensive constitutional concept of linguistic diversity going beyond the recognition of the right to use any of the twenty-three “languages of the Constitution” vis-à-vis the EU institutions. The contributors to this book advocate an open debate on a meaningful culture of respect for linguistic diversity both within EU institutions and in the transnational public sphere. The challenge that they present is to convince people that respect for linguistic diversity should have a place among the common values that hold all Europeans together and that, consequently, it should require institutional arrangements for its protection and promotion.

Notes 1. For a scholarly discussion see Van Parijs (2003, 2004) and Grin (2003). 2. Link to official text: http://unesdoc.unesco.org/images/0012/001271/127160m.pdf. 3. On the background and the content of this Convention see Ruiz Fabri (2007). 4. On the Council of Europe’s activities in this field, see the recent Framework Convention on the Value of Cultural Heritage for Society, of 27 October 2005. 5. For an overview, see Crystal (2000) and Hagège (2000). Similarly, Annamalai (2004) locates the beginning of the professional interest in preserving language diversity in recent times, as evidenced by the formation of a special Committee on Endangered Languages and their Preservation (CELP) by the Linguistic Society of America in 1992; but he underlines that “the active participation of linguists in preservation remains, nevertheless, peripheral to the discipline.” Yet the “ecological” line of thought has penetrated the scholarly writings of other disciplines such as law or political philosophy even less intensively. 6. For the many problems concerning the establishment of the language pool and the size of the problem, see Crystal (2000: chapter 1); for the reasons why we should care, see Crystal (2000: Chapter 2) and Skutnabb-Kangas (2003).

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7. For an earlier discussion of the conceptual assimilation of linguistic diversity protection with environmental protection see Kloss (1969: 287–304). 8. See Annamalai (2004), commenting on the reasons for such public indifference to linguistic diversity. 9. For an introduction to the history of European languages see Harmann (1993) and Walter (1994). On endangered European languages see Extra & Gorter (2001) and Salminen (1999). 10. On the process of extinction of some isolated or marginalised European communities (mostly linguistically defined) such as the Sephardic Jews of Sarajevo, the Germans of Gottschee (Slovenia), the Sorbs of Germany, the Albanians of Calabria and the Aromanians (or Vlachs) of Macedonia, see Gauß (2001); on the opposite process of revival of some linguistic communities, see Abley (2005). 11. See the criticism on this point from an EU lawyer: Wägenbaur 2003. 12. As in fact happened in June 2005. See below. 13. Art. 290 of the Treaty establishing the European Community. 14. Council Regulation (EC) No 920/2005. 15. Art. 1 of the Council Regulation (EC) No 930/2004 and Art 2 of the Council Regulation (EC) No 920/200.

References Abley, Mark. 2005. Spoken Here – Travels Among Threatened Languages. London: Arrow Books. Annamalai, E. 2004. “Public Perception of Language Diversity”. Paper presented at the Linguapax Congress “Dialogue on Language Diversity, Sustainability and Peace”, Barcelona, May 2004. Burke, Peter. 2004. Languages and Communities in Early Modern Europe. Cambridge: Cambridge University Press. Creech, Richard L. 2005. Law and Language in the European Union. The Paradox of a Babel “United in Diversity”. Groningen: Europa Law. Crystal, David. 2000. Language Death. Cambridge: Cambridge University Press. Extra, Guus & Durk Gorter, eds. 2001. The Other Languages of Europe. Clevedon: Multilingual Matters. Fishman, Joshua A. 1994. “On the Limits of Ethnolinguistic Democracy”. Linguistic Human Rights. Overcoming Linguistic Discrimination ed. by Tove Skutnabb-Kangas & Robert Phillipson, 49–61. Berlin: Mouton de Gruyter. Gauß, Karl-Markus. 2001. Die sterbenden Europäer. Vienna: Zsolnay. Grin, François. 2003. “Diversity as Paradigm, Analytical Device, and Policy Goal”. Language Rights and Political Theory ed. by Will Kymlicka & Alan Patten, 169–188. Oxford: Oxford University Press. Hagège, Claude. 2000. Halte à la mort des langues. Paris: Éditions Odile Jacob.



Introduction

Harmann, Harald. 1993. Die Sprachenwelt Europas. Frankfurt am Main: Campus Verlag. Junyent, Carme. 2002. “El concepte de diversitat”. El dret a la diversitat lingüística. Reflexions al voltant de l’article 22 de la Carta dels Drets Fonamentals de la Unió Europea ed. by CIEMEN, 13–19. Barcelona: Mediterrània. Kloss, Heinz. 1969. Grundfragen der Ethnopolitik im 20. Jahrhundert. Vienna: Braumülller. Mackey, William F. 1991. “Language Diversity, Language Policy and the Sovereign State”. History of European Ideas 13: 51–61. Martinell Gifre, Emma & Mar Cruz Piñol, eds. 1996. La conciencia lingüística en Europa. Barcelona: PPU. Milian-Massana, Antoni. 2004. “Le régime juridique du multilinguisme dans l’Union européenne. Le mythe ou la réalité du principe d’égalité des langues”. Revue juridique Thémis 38: 211–260. Ruiz Fabri, Hélène. 2007. “Jeux dans la fragmentation: La Convention sur la promotion et la protection de la diversité des expressions culturelles”. Revue internationale de droit international public 1: 43–87. Salminen, Tapani. 1999. UNESCO Red Book on Endangered Languages: Europe. http://www. helsinki.fi/~tasalmin/europe_report.html. Skutnabb-Kangas, Tove. 2003. “(Why) Should Diversities Be Maintained? Language Diversity, Biological Diversity and Linguistic Human Rights”. Glendon Distinguised Lecture, York University, Toronto, 2003. Van Parijs, Philippe. 2003. “Linguistic Justice”. Language Rights and Political Theory ed. by Will Kymlicka & Alan Patten, 153–168. Oxford: Oxford University Press. Van Parijs, Philippe, ed. 2004. Cultural Diversity versus Economic Solidarity. Brussels: De Boeck. Wägenbaur, Bernd. 2003. “Die Erweiterung der Union zwischen Sprachenvielfalt und Sprachlosigkeit”. Europäische Zeitschrift für Wirtschaftsrecht 23: 705. Walter, Henriette. 1994. L’ aventure des langues en Occident: Leur origine, leur histoire, leur géographie. Paris: Robert Laffont.

13

part 1

Factual and theoretical approaches

chapter 1

Linguistic diversity as curse and as by-product1 Philippe Van Parijs

What is linguistic diversity? How can it be measured? Can the spreading of a lingua franca be expected to reduce it? And if so, does it matter? In an attempt to answer these questions, this paper first distinguishes the three dimensions of diversity – richness, evenness and distance – and describes the tension that is bound to arise between linguistic diversity in various senses and the promotion of multilingualism. It next distinguishes between the two levels of linguistic diversity – local and territorial – and describes the structural tension that tends to develop between local and territorial linguistic diversity. Against this background, it argues (a) that linguistic diversity, by itself, cannot plausibly be regarded as a good, all things considered, especially because of its negative impact on the prospects for economic solidarity; (b) that the erosion of local linguistic diversity should therefore be witnessed with equanimity; but (c) that territorial linguistic diversity will nonetheless need preserving as the by-product of a concern for the equal dignity of the identities closely associated with native languages.

The three dimensions of diversity Our intuitive notion of diversity contains three dimensions. These I shall label, borrowing from the discussion on biodiversity, richness, evenness and distance. Take a population A consisting of three communities, each of them speaking only one language, and another population B consisting of five communities, each of them also speaking only one language. The richness of B is then said to be greater than that of A, as the number of distinct types – whether species, races or, in this case, native languages – is larger in B than in A. It may therefore be tempting to

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infer that population B is linguistically more diverse than population A. But this would be premature. Why? Suppose that the three communities that make up population A are of about equal sizes, whereas in population B one of the five languages is the native language of 99% of the population. In the light of this additional information, we shall have no difficulty agreeing that population A is, after all, linguistically more diverse than the nearly homogeneous population B. Diversity, we conclude, cannot be only a matter of richness, i.e. of number of types, but also of evenness, i.e. of how equally the population is spread between those types, or of how little the members of the population are concentrated in one or few types. Just as richness will not do without evenness, evenness will not do without richness. Just imagine that population A is joined by one individual with a distinct native language. Surely diversity increases. Yet evenness unambiguously declines. Hence evenness cannot be all there is to diversity. Richness matters independently.2 How should these two dimensions be combined? Several indices of fragmentation (or fractionalization, or segmentation) have been proposed for this purpose. The most widely used among them is the Simpson index of fractionalisation: 2 F = 1– Σ ․ si ,

where si is the share of type i in the population (ni/N). The negative term in this expression (the sum of the squares of the shares) is also known as the Herfindal index of industrial concentration when si is interpreted as the share of a firm in total sales on a specific market.3 The Simpson index increases monotonically with both richness and evenness and it can be intuitively interpreted as the probability that any particular member of the population concerned meets someone belonging to a type different from hers in random encounters within the population.4 Richness may be enough to capture our intuitive notion of diversity qua variety or plurality. Richness and evenness together may be enough to capture our intuitive notion of diversity qua fragmentation. But they do not exhaust the whole of our intuitive notion of diversity. If island A houses three species of mosquitoes and island B, in the same proportion, one species of mosquitoes, one species of parrots and one of crocodiles, we shall have no difficulty agreeing that there is more diversity in B than in A. Making such a judgement presupposes some notion of distance. In the case of biodiversity, the extent to which the genetic equipments characteristic of two species differ from one another (genomic distance), or the number of nodes that separate them in the most plausible conjectural genealogical tree (taxonomic distance), has been used for this purpose (see, for example, Weitzman 1992). This third dimension of diversity can be added to richness and



Chapter 1.  Linguistic diversity as curse and as by-product

evenness, not just in the area of biodiversity, but whenever some sensible measure of distance can be devised. Obviously, diversity may increase in terms of Simpson-style fragmentation while decreasing in terms of distance, or the other way around. In many relevant cases, however, the partial ordering produced by the intersection of the three dimensions just discussed (number of types, spread among types, distance between types) should be sufficient to enable us to say, without much hesitation, that diversity is increasing or decreasing in a particular population, and in many relevant cases that diversity is greater in one population than in another. On the other hand, if some sufficiently robust and relevant notion of distance is available, one might be tempted to side-step types altogether. Rather than trying to construct a compound out of the number of types, the distances between types and the spread of individuals among types, one might wish to go straight for the average distance between individuals. This is exactly what is proposed by Bossert, D’Ambrosio & La Ferrara (2006) with their generalized fractionalization index: 2 G = 1– ( iiΣ ijΣ ․ pij )/ N

where pij is the degree of proximity (normalized so as to fall between 0 and 1) between individuals i and j, and N is the number of individuals in the population. In the special case in which pij is posited to be 1 for two individuals belonging to different types, and 0 for two individuals belonging to the same type, this generalized index of dissimilarity coincides with the Simpson index of fractionalization presented above.5 The latter can therefore be interpreted as relying on a very rough assessment of distance. But this need not make it less relevant than the generalized index in most contexts. Take race, for example – as defined by the colour of the skin. Degrees of darkness may matter for some purposes, but the most useful index of racial diversity is most likely to remain one defined in terms of that small set of discrete types in terms of which people perceive themselves and are perceived by others.6 As regards linguistic diversity, Simpson-style indices can be devised and applied easily enough as soon and as long as one can draw a sensible list of distinct languages (no continuum of dialects) and uniquely ascribe each individual to one and only one of them (no multilinguals). To capture distance, on the other hand, two types of indices have been proposed, parallel to taxonomic and genomic distance in the biological case. Thus, Laitin (2000) and Fearon (2003) use an index based on the number of branches two languages share in a hypothetical family tree of languages, while Pinelli (2005) uses an estimate of the time elapsed since the linguistic communities involved were separated. One problem with such indices is that they overlook proximity generated through lexical borrowing and

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other linguistic influences after separation. This could in principle be remedied by using measures of linguistic proximity. Thus, Desmet and others (2005) use Dyen and others’ (1992) index of lexical distance among a large number of IndoEuropean languages based on the proportion of words with a common origin in a small sample of basic words. The problem is that basic words are less likely to be borrowed than less frequent ones, and that use of the Dyen index therefore oddly implies that French is lexically closer to German than to English, despite the massive import of French words into English. However, one may wonder whether making linguistic difference a matter of finely measured degree serves any purpose. Linguistic difference as a causal factor would seem to be essentially a matter of hindered oral communication through lack of mutual intelligibility, a threshold quickly reached even by comparatively closely related idioms. Nonetheless, Desmet and others (2005) show that an index of linguistic diversity that takes linguistic distance into account is a better predictor of the degree of redistribution (as the share of social spending in GDP) than are indices of fractionalization. The underlying mechanism they suggest, however, is not a direct causal impact of linguistic distance. Linguistic similarity is rather taken as a proxy for how close and recent contact has been between the populations concerned.7 The discussion so far takes for granted that each human being can be assigned to one language, just as every organism can be assigned to one species. Human beings, however, are endowed with the capacity to become competent in several languages. This makes room for a distinct and often more relevant notion of linguistic distance. Take the case of a population consisting initially of two unilingual communities A and B, and suppose that half of B learns the language of A. This learning generates a new mixed type AB, and diversity, as measured by the Simpson index, would unambiguously rise. Surely, it makes far more sense to assert that diversity has thereby been reduced: by being turned into ABs, some of the As have come linguistically much closer to the Bs, and have thereby reduced the average distance between the linguistic repertoires of the population. As soon as some degree of multilingualism is present, in other words, it is natural to define linguistic distance as the lack of overlap between linguistic repertoires, and linguistic diversity as average linguistic distance. The more languages two people have in common, and the better they know these languages, the smaller the linguistic distance between them. And the smaller this distance, on average, between members of a population taken two by two, the less diverse the population.



Chapter 1.  Linguistic diversity as curse and as by-product

Multilingualism against linguistic diversity? In the light of this conceptual clarification, let us examine the relationship between linguistic diversity and convergence towards one lingua franca. Consider, for example, the two chief official goals of the European Union’s language policy: the protection of linguistic diversity and the promotion of multilingualism.8 At first sight, there is a natural complementarity between these two objectives: multilingualism is inconceivable without linguistic diversity, and linguistic diversity is pointless in the absence of multilinguals capable of enjoying it. There would indeed be no tension whatever between the two objectives if the multilingualism of the European Union took the form of the Germans learning Cantonese and Quechua, the French Afrikaans and Telugu, the Brits Javanese and Lingala, and so on. But of course it does not, for two main reasons.9 First, there is an officially declared bias favouring the learning of other EU languages rather than, say, Arabic or Chinese. Secondly, there is an officially unintended bias towards the learning of English, driven by the interaction of probability-sensitive learning and minimex language use.10 Consequently, as the European population is growing more multilingual (or at least bilingual) by increasing its competence in at least one foreign language, it is becoming more diverse in terms of richness and evenness, through the appearance and gradual expansion of mixed types. But it is by the same token becoming less diverse in the more plausible sense spelled out at the end of the previous section that incorporates distance between linguistic repertoires. Reduced linguistic diversity so understood is a direct and unavoidable consequence of the spreading of a lingua franca. There is a second reason, this time causal, not logical, why widening competence in a shared language can be expected to reduce linguistic diversity. Whenever natives of some language learn another language, this expands the possibility of borrowing and other forms of influence. However, as most native speakers of a given language become competent in the same non-native language, this possibility becomes a strong probability, and the language they all learned will tend to exert a lasting influence on their native tongue – most obviously through the import of vocabulary, sometimes also through morphological and syntactic changes (see for example McWorther 2001: Chapter 3). Moreover, as the natives of several languages all become competent in the same lingua franca, such influences bring their languages closer not only to this lingua franca but also to one another. There must be few languages today in which it has not become “cool” to “google” “blogs” on the “web”. Owing to this process, it is not just the distance between linguistic repertoires that shrinks  – trivially – as a result of the emergence of a lingua franca. It is also the distance between the native languages themselves.

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Thirdly, the spreading of the lingua franca can be said to reduce linguistic diversity even in a sense that abstracts from distance between languages and repertoires and takes only richness and evenness into account. To see this, one needs to make a distinction between the distribution of competences and the distribution of performances – a distinction which has no analogue in the case of biodiversity. To illustrate, consider jointly the following two trends, both very tangible in Europe today. One is the spreading of competence in English through the explosive interaction of probability-sensitive learning and minimex communication.11 The other is the growth of the proportion of linguistic interaction occurring between people with different mother tongues. Under some mild assumptions, the necessary outcome of the combination of these two mutually reinforcing trends is an increase in the proportion of conversations held in English. As we move away from a world of essentially unilingual communities whose members talk only to each other, the proportion of conversations held in a language stops being roughly equal to the proportion of natives of that language.12 And once the gap between the two proportions is no longer insignificant, it makes sense to redefine richness and evenness in terms of whether and how much the various languages are being used in conversations, rather than in terms of their presence and distribution in people’s competences. As people add competence in English to competence in their native language and interact with people who lack the latter competence, they substitute English for their mother tongue in a growing share of their conversations. Hence, while evenness need not decline and may even increase as regards competences (as mixed types catch up with pure types), it will exhibit a strong tendency to decrease in terms of performances. We are of course very far from a situation of random mixing, but transnational mobility and communication are sharply on the increase, and further facilitated by the very spread of the lingua franca. Moreover, in some non-Anglo countries as different as India and the Netherlands, many people have achieved such a high level of competence in the lingua franca that they find it easier to express themselves on some subjects in that language even with people sharing their native tongue. When this last stage is reached, however, one must be prepared for a decline in diversity in yet another, fourth sense, which concerns competence, as the first two did, not just performance, and which obtains even if we ignore the dimension of distance, as the third sense of diversity did. Universal diglossia, i.e. the generalization of bilingualism in a linguistic community through the learning by all its members of the same more widely spread language, is commonly regarded by sociolinguists as the last stage before the local language starts withering away. As Antoine Meillet (1928: 117), among many others,13 puts it, “The local idiom is useless the day the whole population, knowing the common language, is bilin-



Chapter 1.  Linguistic diversity as curse and as by-product

gual. The young then no longer feel the need to know the local idiom: even if they practiced it in their childhood, they forget it as they grow older.” Whereas few people seem to be greatly concerned with loss of linguistic diversity in the first three senses considered above, many are indeed concerned with loss of linguistic diversity in this fourth sense. This time, competence diversity shrinks – not just performance diversity as in the third sense; and it does so through impoverishment, no longer through enrichment as it did in the first two senses. Yet, throughout the linguistic history of the world, diversity loss in the first sense has typically led to diversity loss in the fourth one. In many cases, oppression and shame accelerated the process. But in a high mobility context, the explosive interaction of probability-sensitive learning and minimex communication is powerful enough to complete the job unassisted. As diversity loss in the first sense is inseparable from the very adoption of a lingua franca, the erosion of linguistic diversity in this fourth sense is a sensitive issue to which I shall return.

Local diversity versus territorial diversity Just as important as the distinction between three dimensions of diversity – richness, evenness and distance – is the distinction between its two levels. Here again, it is helpful to look at the literature on biodiversity, where a distinction is commonly made between α-diversity, or the number of species within a particular habitat, and β-diversity or the number of species within a particular landscape consisting of a set of habitats. Both α-diversity and β-diversity express richness – or “variety” or “inventory diversity” – at the local and at the global level, respectively. By contrast, β-diversity is meant to express differentiation – or “distinctiveness” or “specialization” or “segregation” – i.e. the extent to which habitats differ from one another within a given landscape. β-diversity can be defined, as it was initially in the biodiversity literature, as the ratio of γ-diversity to average β-diversity, i.e. the ratio of the total number of species in the landscape to the average number of species in its habitats. Alternatively and more conveniently, it can be defined as the difference between γ-diversity and average α-diversity.14 Under either definition, it reaches its minimum (1 and 0, respectively) when all species present in the landscape are present in each habitat, or in as many habitats as their (possibly small) sizes allow, and its maximum is reached when each species is gathered in a single habitat, or in as few habitats as its (possibly large) size allows. Beyond the case of biodiversity, we can analogously make a more general distinction between (α) diversity (or variety) within some component (habitat, neighbourhood, region, country, etc.) of a broader population (landscape, city, country, world, etc.) and (β) diversity (or differentiation) across such components.

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These components are usually defined territorially, but need not be. They could correspond, for example, to the various sections of a school or to the various regiments that make up an army. To the extent that the components are local units, defined in territorial terms, I shall speak of local diversity to refer to α-diversity within some local unit, and of territorial diversity to refer to β-diversity across local units. In the case of ethnic, or cultural or linguistic diversity, this distinction is useful to contrast, on the one hand, the local diversity that exists, say, in a town (typically as a result of recent immigration, but also sometimes as a result of more ancient immigration, with distinctness perpetuated by religious differences, as in the Jewish ghettos of medieval cities); with, on the other hand, the territorial diversity that exists between different geographical areas of a particular country, such as Switzerland or Nigeria, typically as a result of its incorporating territories in different languages that have been co-habiting “forever”. To capture the notion of territorial diversity properly, however, it is essential not to confine it, as I have done so far, to the richness dimension, i.e. to the number of types (species, languages, races, etc.). Take for example an island consisting of two regions. At an early stage, each of the two regions has native Greek speakers and native Turkish speakers in equal proportions, say 50/50. At a later stage, one region has a 90/10 majority of Greeks and the other one a 90/10 majority of Turks. Despite the dramatic shift, the island’s territorial diversity, using the measure specified above, has remained unchanged at its minimum level, since the average number of native languages per region has remained equal to the total number of native languages on the island (β = 2 – (2+2)/2 = 0). As this example shows, a useful notion of territorial diversity should at least take the evenness dimension of diversity into account. Useful indices which do precisely this have been developed for very different purposes by sociologists and economists. For example, the isolation index developed in the sociological literature on segregation is the probability that a person will meet another member of her own ethnic group if she were to meet at random other dwellers of her neighbourhood. This index can obviously be generalized to any interpretation of both type and local unit. Its average value across all types reaches its minimum when the distribution of types is the same in all units. Moves away from such a homogeneous distribution of types across units are reflected in a rise of the isolation index, which therefore provides a more satisfactory index of territorial diversity than β-indices of biodiversity. In our island example, for instance, the probability that a Greek will meet a Greek when randomly meeting inhabitants of her or his region is significantly higher under a 90/10 distribution than under a 50/50 distribution.15 In a very different context, economists developed the country Gini coefficient in order to capture how specialized a country is, i.e. to what extent the distribution of its output between industrial sectors diverges from the distribution of the



Chapter 1.  Linguistic diversity as curse and as by-product

output of a larger entity (say, the European Union) of which it is a part. When averaged over all local units (here, countries), this index can be used to measure the degree of territorial diversity, i.e. in this case the degree of sectoral differentiation of countries. It again reaches its minimum when the distribution is the same in all units, and the larger it becomes, owing to the specialization of each unit in one or more types, the greater the larger entity’s territorial diversity. When applied to our island example, this index also yields a more satisfactory verdict than simple β-indices that only take the number of types into account. Both regions’ Gini coefficients (which capture how “ethnically specialized” they are) and hence also their average value obviously increase as one moves from a 50/50 to a 90/10 distribution of Greeks and Turks.16 Suppose then that we have some sensible notion of both local and territorial diversity. As suggested long ago by Claude Lévi-Strauss (1961) in connection with cultural diversity, there is a tension between the two. Maximum local cultural diversity means that every culture can be found in every place, whereas maximum territorial diversity requires that each place has a culture that cannot be found anywhere else. And the same can be said for linguistic diversity.17 It follows that those wishing to promote local cultural or linguistic diversity must realize that this will come at the cost of reduced territorial diversity. By contrast, if preserving territorial diversity is a meaningful objective, the development of local diversity will need to be counter-acted. Thus, typical “multiculturalism policies” entail fostering local diversity at the expense of territorial diversity, whereas the imposition of an official language on a whole country or part of it amounts to favouring territorial diversity at the expense of local diversity. What about the adoption of a lingua franca? Like multiculturalism policies, it tends to systematically reduce territorial linguistic diversity as a result of the four processes discussed above. Unlike multiculturalism policies, however, it does not do so by systematically increasing local diversity. On the contrary, if we start from a local situation that is not totally homogeneous, it will tend to reduce local diversity too. And even if we start from a unilingual situation, the gradual spread of the lingua franca may first increase local diversity, but once it has reached everyone it will have reduced it to its initial level, and the erosion of the “superfluous” language will start, thus further reducing territorial diversity.

Is linguistic diversity valuable? This stylized picture of the processes at work brings out the ineluctability of a deep long-term tension between the spreading of a lingua franca and linguistic diversity, whether the latter is defined in a way that includes only richness or also

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evenness and distance, whether it is interpreted as local or as territorial diversity. Is this a problem? The responses I offered to the cooperative and distributive injustices generated by the adoption of a lingua franca (LJ chapters 2–3) did nothing to alleviate this threat. On the contrary, by endorsing linguistic territoriality, my response to linguistic injustice as unequal dignity does involve a firm protection of some degree of territorial linguistic diversity; but this protection (not maximization) of territorial linguistic diversity is just a by-product of the proposed solution to this dimension of linguistic injustice (LJ chapter 4).18 It is not appealed to as an argument in its favour, whether as an aim in itself or as instrumentally useful for some important aspects of our common good. Is this right? Should diversity not rather be regarded as having great intrinsic or instrumental value, as seems implied, for example, by both the Indian Union and the European Union choosing “Unity in Diversity” as their mottos, in contrast with the United States’ “E pluribus Unum”, or by the European Union’s Charter of Fundamental Rights (2000) making sure to state, in its article 22, that “the Union shall respect cultural, religious and linguistic diversity”?19 And should this not play a major role in the normative discussion of linguistic matters? Let us acknowledge straight away that there are many people who find linguistic diversity a plain nuisance. Among them are those who care for nothing but business.20 But they are not alone. Thus, no doubt to the surprise of many of his contemporary colleagues, the distinguished linguist Meillet (1928: 244) wrote: The small national languages are a stage through which poorly cultured peoples pass on their way to universal civilization. But the multiplicity of the languages currently used in Europe, already inconvenient today, prepares crises which will be hard to resolve, as it goes against the general trends of civilization. The unity of the common language is an immense strength for those who possess it.21

If a powerful language were to drive all others into gradual extinction, not only would we all enjoy the convenience of being able to use our mother tongue in all the conference rooms and hotel lobbies of the world, but incomparably more would be within our reach: even in the most remote bazaars, farmyards and playgrounds, we would be able to understand directly what the locals were saying to each other, while the reach of diverse yet world-wide media and the massively enhanced transnational mobility would prevent the stable development of mutually unintelligible dialects. Once again, all human beings would “speak the same language and form a single people,” and hence possibly “no goal will be unachievable for them” (Genesis 11.6). Is there anything to prevent us from looking forward to this new stage in the progress of mankind, apart from the irrational fear that a jealous Yahweh may strike once more and cruelly thwart our neo-Babelian hubris?22



Chapter 1.  Linguistic diversity as curse and as by-product

Unlike Meillet, most professional linguists are understandably not keen to see most languages in the world quickly vanish, many of them only poorly documented, thereby irreversibly amputating the subject matter of their discipline. But most of them are also reasonable enough to admit, when pressed, that it would be unfair to attempt to induce some people to keep learning, talking and teaching a language they would otherwise abandon, for the sole purpose of enabling a small bunch of inquisitive scholars to indulge their intellectual curiosity and write about them in academic journals. To broaden their coalition, linguists will have no difficulty enlisting translators and interpreters, who would obviously lose their source of income were linguistic diversity to disappear. But this would hardly make the argument less suspiciously corporatist. Nor would their case be much strengthened by the support of the aesthetes who love steeping themselves in delightfully varied linguistic environments. One can sympathize with those who believe that the attraction of Florence would be diminished if Italian had gone into disuse, and that the charm of Rio would suffer if Brazilian were replaced by American. But this seems of precious little weight in regard to the great collective benefits of universal communicability. Those who want to make a persuasive case for the value of linguistic diversity therefore realize they need arguments that appeal to less factional interests.23 One possible line of argument emphasizes that each language is a unique repository of human knowledge. It comes in two main variants. The more subtle one rests on the interesting observation that the syntax of a language, its phonological system, its morphology and its lexicon contain information about the history of the peoples who have been speaking it through the centuries, most obviously about where they came from, about which other peoples they are related to, about which peoples they interacted with. With any language that goes extinct without having been fully recorded, knowledge of this sort is lost forever, a great pity for anyone interested in the relevant segments of human history. But it should be no insult to the honour of their profession that, as an argument for preventing people from giving up their ancestral language, the irreversible loss of such potential knowledge is no more persuasive than the shrinking of the subject matter of professional linguists. The second variant is less subtle but incomparably broader in scope, and hence more promising as a non-corporatist argument. It rests on the plausible assumption that some things have been known only to people of a particular language, uniquely equipped with the terminology needed to formulate them. To illustrate, take the attempt made by Skutnabb-Kangas (2003: Section 3) and others to seal a strong alliance between advocates of biodiversity and linguistic diversity. There is an undeniable positive cross-regional correlation between linguistic diversity and biodiversity, with both languages and species particularly numerous

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(relative to the sizes of human populations) in equatorial areas. What explains the correlation, it is suggested, is a causal link from linguistic diversity to biodiversity: in the absence of the nature-respecting knowledge incorporated in the many local languages, species diversity would soon be reduced. The correlation, however, is bound to have far more to do with the relative attractiveness of certain natural conditions (climate, topography, etc.) for nature- and culture-destroying colonization and industrialization. The relationship between biodiversity and linguistic diversity, as we saw above, can be instructive, but to appeal to a spurious correlation is an unpromising way of harnessing interest in the former in order to generate support for the latter. The impact language conservation may have on species conservation must be, if at all real, very modest, and likely to be offset by the potential of knowledge dissemination which a switch to a more widespread language would create. This last remark applies more generally to any instance of this second variant of the argument: people who possess some knowledge can express it in the language they have learned (and which threatens to displace the old one), even if by importing the terminology from their native language. And by doing so, they would not only preserve the knowledge in question, but also make it more widely available. A distinct family of arguments rests on the connection between linguistic diversity and cultural diversity. Culture can be roughly defined as a set of ways of thinking and behaving that is durably shared by, and distinctive of, a community. Linguistic diversity is linked to cultural diversity in two ways. One is that, like religion for example, a community’s language directly constitutes and shapes its distinctive thoughts and practices. The other is that, more than religion or any other aspect of a culture, it affects the patterns of interaction and hence the flows of information, education, persuasion or imitation that constantly shape and reshape all aspects of culture. Given the nature and reach of present and future media, so this line of argument goes, linguistic diversity is the firmest, and increasingly the only serious protection of cultural diversity. Worldwide, this preserves more options for people to choose from, and hence leaves more room for collective experimentation in private and social life, from which mankind as a whole may benefit in the long run.24 Though unavoidably speculative, this line of argument must be taken seriously. But it is weakened by two serious difficulties. First, if the point of cultural diversity is the cultural freedom it gives, and if the exercise of the latter must therefore be fostered, then cultural diversity, i.e. diversity of thoughts and practices linked to distinctive multi-generational communities, is in the process of being eroded by the very dynamics it sets in motion. Cultural diversity makes cultural freedom possible, but the exercise of cultural freedom replaces cultural with non-cultural diversity, which linguistic diversity has no particular capacity



Chapter 1.  Linguistic diversity as curse and as by-product

to protect. Secondly, the price to be paid for linguistic diversity (also, though to a lesser extent, in the presence of a lingua franca) is the less general and less rapid availability of whatever exists or is invented in any particular culture (except the one associated with the lingua franca). Assuming there is a positive impact of linguistic diversity on cultural diversity, therefore, the positive impact on the general interest will be offset, perhaps only partly but perhaps also to the point of becoming negative, by the lesser availability of whatever cultural diversity there is.

Local linguistic diversity against economic solidarity? In this light, the case for linguistic diversity as an efficient way of pursuing some general benefit turns out to be rather weak. As if this were not bad enough, there appears to be a strong case against linguistic diversity as an obstacle to the achievement of distributive justice (as understood in LJ Chapter 2). Thus, a growing number of econometric studies have tended to establish a robust negative correlation between linguistic diversity and a number of variables that can be regarded as more or less plausible proxies for the extent of economic solidarity or of redistribution of the better off to the worse off. For example, using a sample of over two hundred countries, Alesina and others (2003: Table 13e) show that, after controlling for many variables, there remains a significant negative correlation between, on the one hand, ethnic diversity (using the Simpson index), especially when defined exclusively in linguistic terms, and, on the other, the share of transfers and subsidies in the country’s GDP. This result is even strengthened when the linguistic diversity index is redefined to incorporate linguistic distance (Desmet et al. 2005: Section 5.2). This does not rule out that, owing to some other relevant difference, a linguistically more diverse country may nonetheless achieve greater solidarity than one that is far more homogeneous in this respect.25 All the correlations establish, and need to establish, is the existence of a ceteris paribus relationship. To make sense of this negative relationship between linguistic diversity and economic solidarity, several mechanisms have been suggested. How generous an economic solidarity system manages to be can schematically be said to depend on the willingness of the better-off to share with the worse-off and on the ability of the worse-off to organize so as to force the better-off to share.26 Both factors can be affected by the degree of linguistic diversity through two mechanisms. On the one hand, linguistic diversity makes identification more difficult: a different language makes one part of the population perceive another as alien, as not belonging to the same kind, and hence as less trustworthy, less likely to reciprocate, and less likely to have reciprocated had roles been reversed.27 This may be either

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because the alien language is, as such, a feature of the alien culture that makes the other difficult to identify with, and/or because it reduces interaction and thereby makes the other more impenetrable. Lesser identification makes both the betteroff more reluctant to accept economic solidarity and the worse-off less capable of organizing collectively to demand it effectively. On the other hand, linguistic diversity also affects solidarity simply by making communication more laborious: in the absence of an effective medium of communication, it is more difficult for the better-off to be persuasively exposed to arguments of fairness in favour of the worse-off, for the worse-off to coordinate effectively their struggle against the better-off, and for all to settle on the fine grain of the organization of solidarity.28 The tension thus highlighted can be expected to hold for both local and territorial diversity. Let us consider local diversity first. By ensuring that everyone learns the local official language, the implementation of linguistic territoriality (as advocated in LJ Chapter 4) reduces local linguistic diversity in all four senses distinguished above, and there is no doubt that it also tends to reduce local cultural diversity by increasing every local resident’s potential exposure to the information and ideas available to every other local resident. The intensification of contact may threaten the local survival of languages other than the official one, but the aim should not be to eradicate them. Getting everyone into a common demos made possible by a shared language is essential to the pursuit of distributive justice. People from all layers of society must be willing and able to explain their standpoint to each other, to listen to each other, to take decisions that can seriously claim to have been made for the common good, that can hope to reflect an equal respect for the diversity of conceptions of the good life and an equal concern for the interests of everyone affected. But this does not amount to merging everyone into the same ethnos, with a common language as a core component of the common culture. In other words, the strong identification favoured by linguistic homogeneity may be dispensable if the communication enabled by proficiency in a common medium fully performs its job both on the side of acquiescence by the better-off and on the side of mobilization of the worse-off. In particular, a plurality of languages and the associated cultures can be transmitted from generation to generation in addition to the language known in common. Competence in a shared language is essential to facilitate dialogue, discussion, argumentation, understanding among all the community’s members, but there is no need to turn the community into a cultural monolith. From this perspective, there cannot be either a general endorsement or a general condemnation of linguistically relevant multiculturalism policies, i.e. policies aiming to preserve or respect cultural diversity. There is no conclusive evidence as to whether the adoption of multiculturalism policies tend to correlate with increases or decreases in institutionalized solidarity.29 But even if there



Chapter 1.  Linguistic diversity as curse and as by-product

were such evidence, no general conclusion could be drawn. Suppose for example that the data showed a positive correlation. For critics of multiculturalism policies this need not come as any surprise. Both multicultural policies and welfare policies, some of them claim, stem from the same “providential” dynamics of the contemporary democratic state, which drives the latter to accommodate an ever expanding set of sectoral demands.30 No wonder, therefore, that they might be positively correlated, at least in the short run. But this is consistent with multiculturalism policies slowly undermining the welfare state, if only by hindering a rapid reduction of the linguistic cultural diversity that keeps being amplified by immigration. Because of the time required for these sociological processes to work themselves out and the randomness involved in their being politically exploited, this effect is most unlikely to show up immediately, even though the weakening of the fellow-feeling between all citizens and the decreasing ability of the worse-off to join forces in a common struggle make the “providential” set-up increasingly vulnerable. Moreover, the fine grain of the multiculturalism policies is of crucial importance. By way of illustration, consider the teaching of, or in, the immigrants’ mother tongues – a multiculturalism policy that can be sensibly justified both as a way of symbolically asserting the dignity of the languages concerned and the associated identities and, in some cases, as a way of formalising and strengthening the children’s valuable competence in a major world language such as Spanish, Arabic, Turkish or Bengali. The most straightforward way of doing this consists in offering this option in those schools in which there is sufficient demand for a particular language, owing to a high proportion of pupils with a particular origin. In countries where school choice is free, the provision of such courses will create an incentive for parents of the relevant origin to send their children to those schools. As a result, whatever degree of ethnic mixing has been achieved in the school system will be reduced, and given that children’s acquisition of the local language depends more on interaction with their peers than on formal teaching, the long-term threat posed to social cohesion (through the causal chain of poor linguistic competence, low productive skills generally, low probability of landing a good job, low chance of social and geographical mobility) is quite considerable. In countries in which school choice is strongly constrained by districting, the threat will be slower to show but deeper, as the provision of immigrant language courses will not only create an incentive to change schools, but also to move, thus fostering segregation not just in schooling but also in housing. Much of this effect can be switched off, however, if instead of being organised as part of the curriculum of a particular school, the courses were open to pupils from different schools, which, in an urban context, is often a realistic possibility.31 A small organisational difference that could not reasonably be expected to affect an index of the extent

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of multiculturalism policies is therefore arguably of crucial importance for the strains these may help perpetuate or amplify with economic solidarity.32 Presupposed in this discussion is the notion that the persistent segregation of linguistic communities is to be counteracted. This should not be regarded as self-evident. Thus, to explain that support for the welfare state in Canada does not seem to suffer from growing overall levels of ethnic diversity, Soroka, Johnston and Banting (2004) suggest, that “the high level of geographic concentration of immigrant minorities in certain regions and especially certain urban areas” may be better for interpersonal trust, which itself clearly has a positive effect on support for the welfare state.33 One should not overlook the direct impact of social capital on distributive justice (what is distributed through local informal solidarity may matter as much as what is distributed by formal institutions) and the welfare state may well be less vulnerable politically with tight ethnic communities than with general anomy.34 But especially if the ethnic divide is a linguistic divide, the vicious circle of a persisting linguistic handicap sketched earlier makes segregation most unpromising for distributive justice, both because of its direct impact on opportunities and because of its impact on competent participation in a common public forum and in the mobilization of the worse-off.35 Hence, multiculturalism policies that breed segregation by compelling, encouraging or even simply allowing linguistically distinct immigrant communities to have their own schools, sports clubs or neighbourhoods can be expected to affect negatively the prospects of economic solidarity. It is of course not only multiculturalism policies that affect the extent of separation between the various linguistic communities. The fine grain of the institutions of economic solidarity is no less relevant.36 This holds, for example, for the organization of the health care system, which can be more or less segregated. It also holds for the aspects of the welfare state that most affect the labour market. Suppose that basic economic security is implemented through employment­unfriendly means-tested benefits, which are withdrawn as soon as a member of the household performs a declared paid job and which may prove difficult to recover once that job is lost, owing to opaque and possibly discriminatory rules. For a given level of generosity of the welfare state, the opportunity and motivation to acquire and retain linguistic skills will be far less than under a more employmentfriendly regime, with a cumulative negative impact on both the opportunities and participation of linguistic minorities. It does not follow that one should go for a punitive workfare state, which would amount to reducing the extent of solidarity (distributive justice, as interpreted in LJ Chapter 3, is not only a matter of income). There are other versions of the “active social state” that consist in spreading solidarity to low-income working households, whether through wage subsidies, through varieties of earned income tax credits or (my preferred variant) through



Chapter 1.  Linguistic diversity as curse and as by-product

the provision of a universal income floor in the form of non-means-tested child benefits and basic pensions and a modest citizen’s income for all adults.37 The general conviction that underlies this discussion is that a key factor in sustaining generous economic solidarity despite growing local linguistic and cultural diversity is the presence of sufficiently intensive interpersonal contact, through school, work and other channels, across the boundaries that tend to form around linguistically distinct communities.38 It must, however, be conceded that the more contacts of these sorts there are, the stronger the tendency for local linguistic and cultural diversity to wither away or to grow less (as a result of continuous immigration) than it would otherwise have done, as a result of interaction, including intermarriage, and of exposure to common circumstances, information and other influences.39 Unlike the erosion of territorial diversity, to which I will return shortly, this erosion of local diversity is not a problem. Fair economic opportunities and appropriate weight in the political process must have precedence over the preservation of local linguistic and cultural diversity wherever it happens to emerge as a result of immigration. Even if this results in some languages and cultures being squeezed out locally altogether, no unfairness, or lack of respect, is thereby being inflicted on anyone, providing the background assumption is one of reciprocity, however counterfactual. Had the roles been reversed, had the (current) autochthonous population been migrating into the homeland of the (current) immigrants, they could not have claimed or expected more by way of preservation of the local cultural diversity which they would have been causing by moving there. By deliberately reducing or containing local linguistic diversity, therefore, the learning of a common language by all those who share a territory does not hurt justice as equal dignity (see LJ Chapter 4), while promoting the conditions for furthering distributive justice.40

Territorial linguistic diversity against economic solidarity? Thus, the linguistic territoriality regime offered to handle linguistic injustice as unequal dignity sides conveniently with distributive justice at the expense of some diversity at the local level. At the territorial level, by contrast, it has the effect of protecting diversity, and hence would seem to undermine rather than improve the conditions for distributive justice on a broader scale. If the segregation of linguistic communities at the local level is a bad thing for the sake of economic solidarity, fortunately counteracted by the linguistic territoriality principle, how can it fail to be a bad thing on a larger scale too? By hindering both identification and communication, as explained above, linguistic diversity can be expected to

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weaken the prospects for economic solidarity at the territorial no less than at the local level. Before addressing this challenge, we need to consider a puzzling argument to the effect that this challenge is a fiction, that there are on the contrary good reasons to expect territorial linguistic diversity to go hand in hand with a developed welfare state. The point of departure of this argument – and part of what it is meant to explain – is the contrast between the United States and the European Union taken as a whole. At present, the level of economic solidarity can safely be said to be higher in the latter than in the former. Yet it is obviously also the European Union that exhibits the higher level of territorial linguistic diversity, firmly preserved by national boundaries that have gradually come to coincide by and large with linguistic boundaries (through the two mechanisms sketched in LJ, Chapter 4). Economic reasoning suggests that this positive correlation between solidarity and diversity is no coincidence. Here is the argument. Industrial development relies crucially on specialised skills. But heavy investment in these skills will happen only if enough insurance is provided in case local demand for them never materializes or disappears. One way of providing such insurance is by unifying linguistically a large area within which one can then move at comparatively low cost in search of another employment for the same skills. Another is through a developed welfare state. With a territory cut up into smaller linguistic areas, and hence with a higher average cost of moving in search of another use for one’s skills, the optimal welfare state is bound to be, on average, considerably larger in the European Union than in the United States.41 Rather than happily concluding that, far from being antagonistic, territorial linguistic diversity and generous economic solidarity are complementary, it is important to note, first, that what is shown to be optimal, under conditions of greater linguistic diversity, is greater social insurance, not greater genuine (ex ante) solidarity. That Europe should have a larger truly redistributive welfare state can therefore be explained by this argument only to the extent that it forms an unavoidable by-product of a strong social insurance system, as administrative simplification and political dynamics push the transfer systems of each nation-state beyond what fits under the umbrella of the insurance principle. This is an important qualification. But there is an even more serious objection to a complacent reading of this argument. Suppose that the national solidarity systems become immersed in a common market, in which capital and commodities move freely, while people remain essentially stuck within national borders as a result of language differences. Considerations of competitiveness will put the truly redistributive, so-called “compassionate” aspects of the welfare state under growing pressure, as mobile capital and consumer demand will tend, other things



Chapter 1.  Linguistic diversity as curse and as by-product

being equal, to move to those places where redistributive taxation weighs less heavily on the efficient remuneration of factors of production. The pressure is further increased as the upper layers of the skilled labour force become more mobile transnationally ­ (precisely by virtue of having become competent enough in an international lingua franca), thereby increasing considerably the (redistributive) tax elasticity of the domestic supply of human capital. Governments will need to respond by lowering the higher rates of income tax, by substituting regressive consumption taxes for progressive income taxes, by expanding lax and generous “expatriate” or “non-resident” statuses, by deliberately tolerating tax loopholes that primarily benefit affluent taxpayers, and by shifting government expenditures to the advantage of high earners. Put differently, they will need to shift resources towards subsidised opera performances, public golf courses and convenient airports, and away from subsidies to low-paid jobs, cheap public housing and benefits for the unemployed; towards the cleaning or policing of the better neighbourhoods at the expense of education or public transport in the poorer ones. Immersion in a competitive transnational market turns states into firm-like entities, under constant pressure to downsize their redistributive ambitions, to shrink those aspects of their welfare systems that go beyond insurance, to reduce public expenditures that effect genuine transfers from the high earners to the low earners, from the more talented, the more skilled, the more mobile, towards the less qualified, the less able, the less mobile.42 Of course, as solidarity becomes more difficult to organize, for the reasons just sketched, at the level of individual nation-states immersed in a common market, one might hope that a larger political entity, pitched at a level closer to the one at which the market is operating, say the European Union, could take over the task. Indeed, in the US, the bulk of the net redistribution accomplished by the taxand-transfer system is the work of federal, not of state programmes.43 But as the lingua franca spreads among the highly skilled, the economic case just sketched in favour of developed social insurance systems – and hence the expectation of some genuine solidarity as a by-product – would keep weakening. More importantly, by switching to this higher level, the EU’s advantage over the US in terms of prospects for sustainable economic solidarity would be turned into a handicap, since its far greater territorial linguistic diversity, entrenched by the linguistic territori­ ality principle, tends to make identification and communication at the relevant level far more difficult than in the US. Moreover, precisely because of the grip of the linguistic territoriality principle, there is a strong case for keeping many policies decentralised at a level at which they can be discussed and explained in the language people are most familiar with. This is in principle compatible with organising the bulk of economic solidarity at a more centralised level. But a tension unavoidably arises between

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centralised solidarity and decentralised competences in other fields (say, education, town planning or environmental policy), as some of the benefits and costs of sound or sloppy policy in decentralised matters are exported upwards to the central level, and hence shared by decentralised units which bear no responsibility for them. Thus, the partition of the near totality of Belgium’s surface into two unilingual areas (in the 1930s) led to the growing separation of two distinct public discussion spaces, subsequently to demands on both sides for the devolution of powers to entities matching these spaces, and eventually, in the 1990s, to the transformation of the country into a full-fledged federal state along linguistic lines. In short: no logical entailment, but a natural dynamics. However, the need to allocate to the decentralised authorities responsibility for the consequences of their policies in ways other than the implementation of solidarity further contributes to preventing more centralised, and therefore economically less vulnerable, solidarity from being sustained at as high a level as would be the case with less territorial linguistic diversity. Added to the obstacle it creates for strong identification and fluid communication, this is a third reason why territorial linguistic diversity hinders the pursuit of economic solidarity. There is no point denying this tension between territorial diversity and economic solidarity, and hence between the pursuit of justice as equal dignity through a linguistic territoriality regime and the pursuit of justice as equal opportunity through redistribution. Let us recall the rationale for the territoriality principle (LJ Chapter 4). If we want to respect the equal dignity of the various linguistic communities in a context in which the language of one of them is granted the status of a common lingua franca, demystification and symbolic affirmation are not enough. We must also accept that each of the communities can adopt coercive measures which make it realistic and legitimate to give their language top status in the territory in which it happens to prevail and to effectively protect it against gradual displacement. Although such coercive measures provide some material advantages to the natives of the language, the measures can be expected, under contemporary conditions, to involve a significant long-term net cost for the communities concerned. This cost should be borne by each of the communities which make the choice of imposing protective measures. Some of them will consider it prohibitive, and they will waive their right to implement the territoriality regime which these measures would constitute. The preservation, owing to this set-up, of a significant degree of territorial linguistic diversity constitutes a prima facie hindrance to the pursuit of economic solidarity and hence of distributive justice as equal opportunity, both across linguistic communities and (because of tax competition in the case of redistributive



Chapter 1.  Linguistic diversity as curse and as by-product

schemes at the level of political units immersed in a common market) within each of them. But it is precisely this hindrance which the spreading and democratization of competence in the lingua franca is meant to reduce, by making communication, though not necessarily identification, about as easy and reliable among natives of different languages as it is among natives of the same one. As argued elsewhere (LJ Chapter 4), the very spreading of the lingua franca hinders the effective implementation of the linguistic territoriality principle, both because of universal diglossia among natives and because non-native immigrants can get away with using just the lingua franca. Consequently, the level of coerciveness required to prevent erosion of the local language will need to increase. At the same time, the extent to which the identity of the dwellers of the territory is linked to its language may be sharply reduced.44 We may then be approaching a situation analogous to the terminal stage of many “dialects”, whose native speakers were persuaded to identify with a more or less cognate grander language. No one’s honour or dignity is being threatened if a language with whom no one identifies is not given pride of place anywhere, if it is left to agonize and die. As identification with their language declines, more communities may judge that the preservation of their linguistic distinctiveness is not worth the cost and coercion it imposes and decide to waive in turn their right to protect it. The hindrance to the pursuit of transnational distributive justice will thereby be further reduced. Presumably, if people’s identities were re-shapeable at will, their development of a broader identity strong enough to obliterate their identities as speakers of the weaker language (and heirs to the traditions associated with it) would eliminate any injustice-as-unequal-dignity that might otherwise have been present: injustice as unequal dignity is not between languages, but between people who identify with those languages. Identities, however, are not so malleable. For the time being, therefore, and for the foreseeable future, justice as equal dignity will need to ascribe a major role to the linguistic territoriality principle and hence significant salience to the many quibbles to which its implementation is bound to give rise. As a consequence, a considerable degree of territorial linguistic diversity will need to remain entrenched, to the chagrin of those who believe justice is entirely a matter of material distribution. The celebrators of linguistic diversity will be relieved to read this. But they must realize that they are just being lucky. The reason why linguistic diversity must and will be preserved is not that it is intrinsically valuable, nor that it can be expected, all things considered, to have beneficial consequences. It is simply that it constitutes, for the foreseeable future, a by-product of the pursuit of linguistic justice as equal dignity.

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Notes 1. This paper constitutes a preliminary version of Chapter 5 of a book in progress (Philippe Van Parijs, Linguistic Justice for Europe and for the World, Oxford University Press), referred to below as LJ. The arguments it offers rely on a broader framework developed in this book, in particular the “minimex” analysis of language dynamics, and the distinction between linguistic justice as fair cooperation, as equality of opportunity and as equal dignity. This framework is sketched in Van Parijs (2004). Earlier versions were presented at the seminar “Social Justice and Cultural Diversity” (Amartya Sen and Philippe Van Parijs, Harvard University, Spring Semester 2005), at the Conferences “Understanding Diversity: Mapping and Measuring” (European network “Sustainable Development in a Diverse World”, Milan, 26 January 2006) and “Challenges of Multilingual Societies” (CORE & ECARE, Brussels, 9–10 June 2006) and at the workshop on “Language and Politics” of the World Congress of Political Science (Fukuoka, 10 July 2006). 2. It is here taken for granted that linguistic diversity relates to people’s native linguistic competence. But richness and evenness could also be applied at the level of linguistic performance. This distinction does not make sense in the case of biodiversity: if you are born a chimpanzee, you will not behave and look like a mosquito, nor conversely. But natives of one language can end up speaking to one another most of the time. Diversity at the level of performance may therefore diverge significantly, typically downward, from diversity at the level of competence. The relevance of this distinction will be illustrated below. 3. The Simpson index can be shown to correspond to a particular value (1) of a parameter in a more general index of diversity combining richness and evenness (Patil & Taillie 1982), with richness corresponding to another extreme value of that parameter (-1) and the ShannonWeaver index of entropy corresponding to an intermediate value. For an instructive formal discussion of these indices, see Ottaviano & Pinelli (2005). 4. The probability for some member of type i to meet a non-member of i, assuming the probability of meeting any member of the population (including herself) is the same, is given by (N-ni)/N = 1-si. The weighted average of this probability over all types i is given by Σsi.(1-si) = 1- Σsi2, which is precisely the Simpson index. 5. See Bossert, D’Ambrosio & La Ferrara’s (2006) illuminating axiomatic derivation of their generalized index. 6. See Lee & Bean (2004) and Hochschild, Burch & Weaver (2005) for insightful empirical studies of the distinct effects of colour and race. 7. Indices of diversity that incorporate distance also have the advantage of making results less dependent on the choice of considering two dialects (say, Neapolitan and standard Italian) as two variants of the same language or as two distinct languages. Simpson-type indices can jump as a result of choosing, more or less arbitrarily, the second option, whereas distance-sensitive indices behave more smoothly. 8. See Strubell (2006) for an overview of the declarations by the Commission, the Council and the Parliament.



Chapter 1.  Linguistic diversity as curse and as by-product

9. Robert Phillipson (2003: 193–8) emphasizes the intrinsic tension between the EU’s ritual assertion that, on the one hand, it wants to encourage contact and mobility in all sorts of ways, and hence multilingualism, and, on the other hand it wants to encourage the preservation (if not the promotion) of linguistic diversity. To be fair, the European Commission is not unaware of the tension: “While recognising the emergence of English as the most widely-spoken language in Europe, the Union also wants to make sure that this does not become, over time, a factor limiting linguistic diversity within its frontiers. This is why the Commission’s Action Plan has set the target of ‘mother tongue-plus-two’” (European Commission 2004: 22). This remedy thus offered by the Commission, however, is hardly promising for reasons linked to the core of the language spread mechanism (see LJ Chapter 1) and, even if it did achieve universal trilingualism, it would only mitigate, not remove, the fourfold tension delineated below. 10. As argued in LJ Chapter 1, the core of the dynamics of language spread under present conditions can be understood as the mutually reinforcing interaction between on the one hand the impact of the probability of using a language on the speed with which it is learned, and on the other the systematic adoption, in communication between plurilinguals, of the language of minimum exclusion (or minimex), i.e. the language best known by the participant who knows it least. See also Van Parijs (2004) for a sketchier formulation. 11. See previous note. 12. At the limit (with universal asymmetric bilingualism and random pairing of speech partners), the proportion of conversations held in any language i other than the lingua franca f shrinks from ni/N to (ni/N)2 (with ni the number of natives of language i and N the total population), while the proportion of conversations held in the lingua franca rises from nf/N to 1Σ(ni/N)2. Take, for example, the case of five languages, each with 20% of the native speakers. If the members of each language group only speak among themselves, 20% of the conversations are conducted in each of the five languages. If one of them becomes a lingua franca and conversation partners are picked randomly, 84% of all conversations happen in the lingua franca and 4% in each of the other four languages. 13. See, for example, Crystal (2000: Chapter 3) on this unstable “stage 2” of language shift. In a highly abstract model of trade interaction between two countries of equal sizes but unequal wealth, Choi (2002) shows how the greater relative profitability of specializing in jobs requiring bilingualism for members of the poorer country eventually leads, after several generations, to the exclusive use of the language of the richer country. 14. The former definition was proposed by Whittaker (1972) and the latter by Lande (1996). When all species are present in each habitat, Whittaker’s index is equal to 1 and Lande’s to 0. When the habitats are as specialized as the sizes of the species allow, Whittaker’s index is equal to the number of habitats K or the number of species in the landscape γ, whichever is smaller, while Lande’s is then given by (γ – γ/K). Lande’s measure is more convenient because it enables the richness of the landscape (α) to be decomposed into the sum of the average richness of the habitats (Σαi/K) and their differentiation (β). 15. This probability is (1/10)2 + (9/10)2 = 82/100 under the uneven 90/10 distribution, whereas it is (1/2)2 + (1/2)2 = 50/100 under the homogeneous distribution.

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16. See LJ Appendix 1 for a more precise presentation of this country Gini coefficient (which captures the degree of industrial specialization of countries), as well as of the symmetric industry Gini coefficient (which captures the degree of geographical concentration of industries). Inequality indices can thus serve to measure diversity, albeit in a rather convoluted way. 17. This trade-off is self-evident under the simple interpretation of territorial diversity that only takes richness (the number of languages) into account. But it also holds under interpretations that incorporate evenness (the relative spread of languages), as captured in the indices of isolation or specialization. Starting from a situation of minimum territorial diversity (same distribution of languages in each local unit), it is possible to increase territorial diversity while also increasing local diversity in some of the local units (through swaps that make the distributions more even in each of these), but only at the cost of sharpening concentration (and hence reducing local diversity) in others. 18. The proposed solution falls far short of maximizing linguistic diversity, or even of maintaining as much as possible the existing linguistic diversity, for two reasons. One is that only those languages will survive which manage to grab a territory with sufficient firmness, and hence only those linguistic communities which have the critical mass and the economic confidence that make the cost of this grabbing reasonable. Secondly, whereas the linguistic territoriality principle fosters territorial linguistic diversity by blocking the full replacement of local languages by the worldwide lingua franca, it also counteracts local linguistic diversity by operating as an unfettered local lingua franca. 19. Diversity is sometimes distinguished from sheer variety precisely on the ground that the former, unlike the latter, is regarded as intrinsically valuable. See, for example, Heyd (2005). 20. See, for example, Feld (1998: 199), quoted by Phillipson (2001: 113–114): “It is worthwhile to consider whether the EU should answer the call for uniformity on the issue of language business transactions and further protect itself against the potential onslaught of language regulation by each individual Member State. One potential action the EU might take would be to declare a common language in the EU market.” 21. Less explicit on the linguistic dimension but fundamentally on the same line is Mill’s (1861: 294–5) famous passage: “Nobody can suppose that it is not more beneficial to a Breton, or a Basque of French Navarre, to be brought into the current of the ideas and feelings of a highly civilised and cultivated people – to be a member of the French nationality, admitted on equal terms to all the privileges of French citizenship, sharing the advantages of French protection and the dignity and prestige of French power – than to sulk on his own rocks, the half-savage relic of past times, revolving in his own little mental orbit, without participation or interest in the general movement of the world. The same remark applies to the Welshman or the Scottish Highlander, as members of the British nation.” 22. Troja provides a somewhat less mythical parable for the curse of linguistic diversity. Why did the Acheans win the war? Perhaps because of the cunning of the wooden horse, but incomparably more because their koine, their shared language, enabled them to coordinate effectively, whereas the cacophony that prevailed between Trojans and their allies turned out to be a decisive disadvantage (see Ross 2005). What the Iliad documents is arguably just a special case of the tension between ethnic diversity and the efficient production of public goods, as studied for example by Alesina & La Ferrara (2000).



Chapter 1.  Linguistic diversity as curse and as by-product

23. For a critical survey of the most common arguments, see Crystal (2000: Chapter 2). 24. See, for example, UNDP (2005). 25. One interesting example is offered by the comparison of South Africa and Brazil, two recent federal democracies with a comparable level of development and a similarly high level of gross income inequality (Seekings 2004). Given the massive prevalence of Portuguese in Brazil, any reasonable measure of (evenness-sensitive) linguistic diversity should uncontroversially rank South Africa above Brazil. Yet South Africa displays a far higher level of economic solidarity (transfers reduce the Gini coefficient by 25%, compared to 0–7% in other developing countries), at least before the expansion of Brazil’s centrally funded social assistance programmes from the late 1990s onward. The bulk of this is achieved through a non-contributory old-age pension scheme, first restricted to whites, then extended to all, then differentiated in discriminatory fashion, and finally reunified – all under the apartheid regime. Paradoxically, in the South African case, the racial divide may have helped. The crucial step – the reunification of its old-age assistance scheme in the final years of the apartheid regime – became possible as a result of the establishing of strong intra-racial solidarity being followed by an attempt by the ruling racial group to deflect both domestic revolt and international opprobrium through universalising this solidarity. 26. Generous solidarity is of course more a matter of conquest than of generous sentiments. See, for example, Stephens (1979) on the negative correlation between ethnic diversity and the strength of the labour movement. La Ferrara’s (2004) findings about the negative impact of ethnic heterogeneity on participation in the production of a public good is also, albeit less directly, relevant. 27. On the basis of a large US survey, Putnam (2005) shows that there is a robust negative correlation between the degree of ethnic diversity (using a Simpson index and the five US Census categories: White/Black/Asian/Hispanic) and the level of trust (in members of one’s own as well as of the other groups). 28. Miller (2004) argues, on the basis of international comparisons of people’s revealed sense of justice, that there is little ethnic variation as regards conceptions of distributive justice. However, the finer structure of legitimate solidarity (“What counts as an illness?”, “To what extent and how should it be cared for collectively?” etc.) may vary significantly in culturally diverse communities, and, conceivably, as suggested by Anne Phillips (2004), for reasons that owe more to differences in their recent histories and present conditions than to differences in their remote cultural roots. 29. Against the claim made, for example, by Todd Gitlin (1995) or Brian Barry (2001), that multiculturalism policies undermine economic solidarity, Banting and Kymlicka (2004) showed, using various indices of the degree of economic solidarity achieved by tax and transfer systems, that this cannot be said to have been the case so far. Within the small sample consisting of the four Anglo countries in the context of which the above-mentioned claim is being made, the opposite seems to have happened: the more MCP-intensive countries (Canada and Australia), as far as immigrant minorities are concerned, fared better than the other two in terms of economic solidarity trends. However, if the sample is expanded to include a larger set of OECD countries, no pattern can be detected either way.

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30. See, for example, Schnapper (2002, 2004). 31. Forcing the autochthonous pupils of a school to attend the immigrant language classes when offered would no doubt be even more counterproductive than introducing it as an optional subject. On the contrary, managing to convince some of them (and their parents) of the interest they may have in learning languages such as Arabic and Turkish would be a welcome achievement, providing it is not so successful that it reduces significantly the opportunity and incentive for immigrant children to learn the local language. 32. There is a hint at the importance of considering the fine grain of MCPs in Banting and Kymlicka’s (2004) remark that some critics of MCPs seem to understand the latter in a narrow sense that entails separateness. But separateness need not be part of the explicit content of the policy for it to emerge from its implementation. In my example, it could be said that separateness is greater in the variant of the policy that will, I argue, end up producing less separateness: teaching Arabic as an optional part of the curriculum of nominally multi-ethnic schools looks far less “separatist” than gathering in one place children from various schools who (or whose parents) share the wish (for them) to study Arabic. 33. In the same vein, Putnam’s (2005) data indicate that local ethnic heterogeneity has a negative impact on trust and other indicators of social capital. They therefore suggest that increasing local homogeneity through segregation would increase the level of social capital. 34. See also David Miller’s (2004) conjecture that “segregation”, though worse than “integration”, should be better than “alienation” as far as trust and hence solidarity are concerned. 35. The twofold argument is parallel to the argument in favour of dissemination (versus compensation) as the most appropriate strategy for pursuing distributive justice in the context of the spread of the lingua franca (LJ, Chapter 3). 36. Soroka, Johnston and Banting (2004) persuasively observe, as one possible explanation for the resilience of the Canadian welfare state in the face of increasing ethnic diversity, that a welfare state can accommodate cultural diversity more easily if it relies on contributory benefits (as Canada does to a greater extent than Australia or the US): strengthening the relative importance of the insurance component of a welfare state is no doubt less demanding in terms of identification, but it also amounts to reducing the extent of the genuine (ex ante) solidarity it realizes. The point I am making here is independent of this observation. Even for a given level of generosity, the way the welfare state is structured matters to the tension there may be between diversity and solidarity. 37. See Van Parijs, Jacquet and Salinas (2000) for a detailed comparison of the various versions of this non-punitive “active welfare state”) and Vanderborght and Van Parijs (2005: Chapter 2) for a less technical treatment. 38. Another example is the extension of voting rights at local elections to all non-citizens. This arguably strengthens the weak channels of communication across communities by giving more reasons and pretexts to talk, more opportunities for friendships, connivances and solidarities. It would also increase the electoral incentive to look after neglected urban neighbourhoods, thereby counteracting their ethnic homogenisation. As mutual identification, joint responsibility for the common good, pride (and shame) of place keep being constructed through this and other means in mixed communities, starting from the most local level up, the challenge posed



Chapter 1.  Linguistic diversity as curse and as by-product

to economic solidarity by persistent cultural diversity – in particular in the form of maintenance of immigrant languages from generation to generation – will arguably lose some of its sharpness. 39. As the point is sometimes put (e.g. Salas Astrain 2004: Chapter 1), the “inter-cultural” saps the “multi-cultural”. 40. It is the principled symmetry (or reciprocity) of territoriality regimes that makes a blatant lack of symmetry (between the official language and the others) acceptable without embarrassment as regards local diversity. 41. See D’Antoni and Pagano (2002) and Pagano (2004). What they have in mind is essentially the cash transfer system. But the argument can plausibly be stretched to explain why the optimal level of public funding of higher education should be higher in Europe than in the US, or in Francophone than in Anglophone Canada – and indeed why this is actually the case. This is just another way of collectivising part of the risk involved in the expensive acquisition of potentially remunerative skills. And so is the adoption of rigid pay scales linked to the educational level, also prevailing far more in Europe than in the US. 42. Instead of lamenting all this, should one not rejoice at the constraints to which the national Leviathans are thereby subjected? The disciplining of rulers by a mobile tax base may sometimes provide a powerful and salutary lever for instilling respect for the rule of law, or for fostering the efficiency of the public sector, or for promoting a better match between the public goods supplied by a government and those the populations really want. But we live in a world in which globalisation, privatisation and trade-union decline make factor incomes ever more unequal. We also live in a world in which secularization, marital instability and geographical mobility keep eroding the once powerful income-sharing function of the family. For these two sets of reasons, the redistributive role of the tax system is more crucial than ever to the achievement of anything remotely resembling distributive justice. If it turns out that, in the wake of financial and industrial capital, human capital has to be immunised from redistributive taxation, it will be impossible for anyone who cares about distributive justice not to be deeply concerned. 43. This pressure of market competition on decentralised polities helps account for the negative correlation between federalism (vs unitarism) and economic solidarity. This is pointed out, for example, by Banting and Kymlicka (2004). 44. David Crystal (2000: 81) notes that, in a situation of universal diglossia, the dominated language is there “to express the identity of the speakers as members of their community… The dominant language cannot do this.” But also, “Only at the point where people have completely lost their sense of identification with their ethnic origins will the new language offer an alternative and comfortable linguistic home (at which point, the cultural assimilation would be complete)”.

References Alesina, Alberto & Eliana La Ferrara. 2000. “Participation in Heterogeneous Communities”. Quarterly Journal of Economics 115: 3.847–904.

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Alesina, Alberto, Arnaud Devleeschauwer, William Easterly, Sergio Kurlat & Romain Wacziarg. 2003. “Fractionalization”. Journal of Economic Growth 8: 155–94. Banting, Keith & Will Kymlicka. 2004. “Do Multiculturalism Policies Erode the Welfare State?” Van Parijs 2004b. 227–284. Bossert, Walter, Conchita D’Ambrosio & Eliana La Ferrara. 2006. “A Generalized Index of Fractionalization”. Paper presented at the conference of the Eni Enrico Mattei Foundation “Understanding Diversity: Mapping and Measuring”, Milan, January 2006. Choi, E. Kwam. 2002. “Trade and the Adoption of a Universal Language”. International Review of Economics and Finance 11: 265–75. Crystal, David. 2000. Language Death. Cambridge: Cambridge University Press. D’Antoni, M. & Ugo Pagano. 2002. “National Cultures and Social Protection as Alternative Insurance Devices”. Structural Change and Economic Dynamics 13: 367–386. Desmet, Klaus, Ignacio Ortuño-Ortín & Shlomo Weber. 2005. “Peripheral Linguistic Diversity and Redistribution”. Paper presented at the CORE conference, Université Catholique de Louvain, November 2005. European Commission. 2004. Many Tongues, One Family. Languages in the European Union. Luxemburg: European Commission, July 2004. Fearon, James D. 2003. “Ethnic and Cultural Diversity by Country”. Journal of Economic Growth 8: 2.195–222. Feld, Stacy Amity. 1998. “Language and the Globalization of the Economic Market: the Regulation of Language as a Barrier to Free Trade”. Vanderbilt Journal of Transnational Law 31: 153–202. Gitlin, Todd. 1995. The Twilight of Common Dreams: Why America is Wracked by Culture Wars. New York: Metropolitan Books. Heyd, David. 2005. “Cultural Diversity and Biodiversity: A Tempting Analogy”. Paper presented at the conference of the British Academy “Democracy, Equality and Justice”, London, December 2005. Hochschild, Jennifer, Traci Burch & Vesla Weaver. 2005. “Effects of Skin Color Bias in SES on Political Activities and Attitudes”. Paper presented at the Wiener Center Inequality and Social Policy Seminar, Harvard University, February 2005. Kruskal, Joseph B., Paul Black & Isidore Dyen. 1992. An Indo-European Classification: A Lexicostatistical Experiment. Transactions of the American Philosophical Society 82: part 5. Kymlicka, Will. 2004. “Concluding Reflections”. Van Parijs 2004b. 353–356. La Ferrara, Eliana. 2004. “Solidarity in Heterogeneous Communities.” Cultural Diversity versus Economic Solidarity ed. by Philippe Van Parijs, 69–80. Brussels: De Boeck Université. Laitin, David D. 2000. “What is a Language Community”. American Journal of Political Science 44: 1.142–155. Lande, R. 1996. “Statistics and Partitioning of Species Diversity, and Similarity among Multiple Communities”. Oikos 76: 5–13. Lee, Jennifer & Frank D. Bean. 2004. “America’s Changing Color Lines: Immigration, Race/Ethnicity and Multiracial Identification”. Annual Review of Sociology 30: 221–42. Lévi-Strauss, Claude. 1961. Race et histoire. Paris: Gonthier. Maignan, Carole, Gianmarco Ottaviano, Dino Pinelli & Francesco Rullani. 2003. “Bio-Ecological Diversity versus Socio-Economic Diversity: A Comparison of Existing Measures”. Paper presented at the conference of the Eni Enrico Mattei Foundation, Milan, January 2003. Massey, K.G. & Nancy A. Denton. 1988. “The Dimensions of Residential Segregation”. Social Forces 67: 281–315.



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Meillet, Albert. 1928 (1918). Les Langues dans l’Europe nouvelle. 2nd edition. Paris: Payot. Mill, John Stuart. 1861. “Considerations on Representative Government”. On Liberty and Other Essays ed. by J. Gray 3–467. Oxford: Oxford University Press, 1991. Miller, David. 2004. “Social Justice in Multicultural Societies”. Van Parijs 2004b. 13–32. Ottaviano, Gianmarco & Dino Pinelli. 2005. “Bio-Ecological Diversity versus Socio-Economic Diversity: A Comparison of Existing Measures”. Paper presented at the conference of the Eni Enrico Mattei Foundation & University of Bologna. Pagano, Ugo. 2004. “Cultural Diversity, European Integration and the Welfare State”. Van Parijs 2004b. 315–330. Patil, G.P. & C. Taillie. 1982. “Diversity as a Concept and its Measurement”. Journal of the American Statistical Association 77: 548–61. Phillips, Anne. 2004. “Comments on Miller and Soroka, Johnston & Banting.” Van Parijs 2004b. 59–64. Phillipson, Robert. 2001. “Principles for a Supra-National EU Language Policy”. L’Europe parlera-t-elle anglais demain? ed. by R. Chaudenson, 103–18. Paris: Institut de la francophonie & L’Harmattan. Phillipson, Robert. 2003. English-only Europe? Challenging Language Policy. London: Routledge. Putnam, Robert. 2005. “Can We Reconcile Community and Diversity?” Harvard University: Justice, Welfare and Economics Lecture, 6 April 2005. Ross, Shawn A. 2005. “Barbarophonos: Language and Panhellenism in the Iliad”. Classical Philology 100: 4.299–316. Salas Astrain, Ricardo. 2004. Etica Intercultural. (Re)lecturas del pensamiento latinoamericano. Santiago: UCSH. Schnapper, Dominique. 2002. La Démocratie providentielle. Essai sur l’égalité contemporaine. Paris: Gallimard. Schnapper, Dominique. 2004. “Linguistic Pluralism as a Serious Challenge to Democratic Life”. Van Parijs 2004b. 213–226. Skutnabb-Kangas, Tove. 2003. “(Why) Should Diversities Be Maintained? Language Diversity, Biological Diversity and Linguistic Human Rights”. Glendon Distinguished Lecture, York University, Toronto, 2003. Soroka, Stuart N., Richard Johnston & Keith Banting. 2004. “Ethnicity, Trust, and the Welfare State”. Van Parijs 2004b. 33–58. Stephens, John. 1979. The Transition from Capitalism to Socialism. Urbana: University of Illinois Press. Strubell, Miquel. 2006. “Building a Multilingual Europe: Discourse or Rhetoric?” The Challenge of Multilingualism in Law and Politics ed. by D. Castiglione & C. Longman. Oxford: Hart. UNDP. 2005. Human Development Report 2004: Cultural Liberty in Today’s Diverse World. New York: UNDP. Vanderborght, Yannick & Philippe Van Parijs. 2005. L’ allocation universelle. Paris: La Découverte. Van Parijs, Philippe, Laurence Jacquet & Claudio Salinas. 2000. “Basic Income and its Cognates”. Basic Income on the Agenda ed. by R.J. van der Veen & L. Groot, 53–84. Amsterdam: Amsterdam University Press. Van Parijs, Philippe. 2004a. “Europe’s Linguistic Challenge”. Archives européennes de sociologie 45: 1.111–152.

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Van Parijs, Philippe, ed. 2004b. Cultural Diversity versus Economic Solidarity. Brussels: De Boeck Université. (Downloadable from http://www.etes.ucl.ac.be/Francqui/Livre/Livre.htm.) Van Parijs, Philippe. Linguistic Justice for Europe and for the World. Oxford: Oxford University Press, in progress (referred to as LJ). Whittaker, R.H. 1972. “Evolution and Measurement of Species Diversity”. Taxon 21: 213–251.

chapter 2

Language diversity in the European Union An overview Patxi Juaristi, Timothy Reagan and Humphrey Tonkin

An examination of the extent and diversity of languages in Europe and specifically in the European Union reveals that there are over sixty indigenous languages currently spoken in, and historically established in, the territory of the EU, along with almost thirty sign languages. The authors identify and briefly examine the spoken languages, with due attention to the difficulty of working with language statistics. European languages within the EU can be divided into three categories, based on the number of native speakers of a given language in the EU itself. The authors also compare European linguistic diversity with linguistic diversity worldwide, and present a brief overview of language policies in the EU with respect to the designation of official languages in various member states.

Introduction There are, according to most estimates, somewhere in the general neighbourhood of 6,000 languages spoken around the world at the present time. The relative diversity of languages varies considerably, though, from one part of the globe to another, and Europe is an area in which linguistic diversity is comparatively fairly limited. Of the roughly 6,000 languages in the world (if we accept that total), only 200 are European (i.e. 3%), while 1,900 (32%) are African, 1,900 (32%) are Asian, 1,100 (18%) are Pacific and Oceanic, and 900 (15%) are American. To be sure, there are on-going debates about the precise criteria for differentiating languages from dialects, and how these criteria might apply in particular cases, but the overall picture is clear (see Comrie, Matthews & Polinsky 1996; Crystal 2000; Grenoble & Whaley 1998; Hagège 2000; Nettle 1999; Wurm 2001).

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The relative lack of linguistic diversity in Europe, though, is a lack only in relative terms: the presence of linguistic diversity in Europe in general, and in the European Union (EU) in particular, is an important social, cultural, economic and political fact of life, and one which has significant implications both for Europe itself and for many other parts of the world. In this chapter, we will provide a general overview of the languages spoken in the EU, as well as the numbers of speakers and the status of these different languages. The information used in this chapter comes, in part, from the World Languages Report, a research project that began in 1998 and was finished in 2003 (Martí et al. 2005; see also www.amarauna-languages.com). This report had two very important aims to fulfil: on the one hand, to provide a description of the languages in various regions of the world and the problems affecting them; on the other hand, to try to recover languages in danger of extinction by facilitating decision-making on policies.1

Languages in the EU Because of the problem of deciding whether a variety of a language is a freestanding language or a dialect, it is quite difficult to specify the exact number of languages spoken in the EU: one’s estimate will vary depending on the criteria used to define what constitutes a language. For example, while Grimes (2000) mentions seven different Germanic languages spoken in Germany, many other scholars consider these “languages” to be varieties of German. Should Luxembourgian, Alsatian, Mocheno, Francique, Walser, or Zimbrian be considered dialects of German, or are they different languages? The answer, of course, is ultimately extra-linguistic in nature; as the American linguist Max Weinreich is credited with observing early in the 20th century, “A language is a dialect with an army and navy.” Thus, in the modern European context, Luxembourgian has recently become one of the official languages in Luxembourg along with German and French, although not long ago it was considered a dialect or variety of German. A similar question could be asked: Is Tsakonian a dialect of Modern Greek or is it a separate language? As Price (2000) has observed, Tsakonian is a dialect of Greek spoken in a number of villages in the SE Peloponnese between Mount Parnor and the Argolic Gulf. Not being mutually intelligible with other dialects, it has sometimes been reckoned to be a distinct language. According to different sources there are 300 speakers of Tsakonian nowadays.

The answer, again, is extra-linguistic rather than linguistic in nature. In this chapter, all language varieties which have any kind of official status, such as Luxembourgian, Meänkieli, or Rusyn,2 will be considered, but those dialects without any



Chapter 2.  Language diversity in the European Union

official status, such as Alsatian, Mocheno, Francique, Walser, Zimbrian, Tsakonian or Võro, will be ignored.3 An additional challenge in addressing linguistic diversity in the EU is presented by immigration into Europe, with the concomitant establishment of language communities speaking non-European languages. The languages spoken in these immigrant communities for the most part lack official recognition, regardless of their numbers of speakers. For example, because of the migrations of recent decades, more than 125 languages are spoken nowadays in the EU (Siguán 1995). In France, for instance, Algerian Arabic is spoken by more than 600,000 speakers; Kabyle, a language of the Algerian Berber family, by more than 500,000 speakers, and Tunisian Arabic by more than 200,000 speakers (Martí et al. 2005). In London, Punjabi has approximately 143,000 speakers, Gujarati around 138,000 and Hindi/Urdu 125,900 (Baker & Eversley 2000).4 Clearly a public debate about the role and rights of languages spoken by immigrants is needed in the EU, and to some extent this debate has already begun. In September 2005 the European Commission adopted A Common Agenda for Integration – Framework for the Integration of Third-Country Nationals in the European Union. This document provides some suggestions for action at both the EU and the national level, and member states are encouraged to strengthen their efforts with a view to developing comprehensive national integration strategies, while new ways of ensuring consistency between actions taken at the EU and national levels are proposed. Nevertheless, action with respect to the linguistic rights of immigrant communities remains largely unaddressed. Given the limitations of this chapter, such languages will not be discussed here in spite of their importance. We do want to note, though, the significant importance of such languages for the EU; in many instances, the number of speakers of these languages far exceeds those of many of the indigenous languages that we will be discussing here. Of the languages indigenous to Europe which are recognized in some way officially (though this recognition, and its implications, can vary dramatically), we find some 63 languages spoken as first languages in the EU, plus a few “special cases.”5 Our use of the term “first languages” leads us to issue a warning: in examining the following list and its accompanying comments, the reader should bear in mind the extreme unreliability of even the best of language statistics. What constitutes a speaker of a language? How are the statistics gathered? How reliable is the source of the statistics? Everything from methods of census gathering (including self-reporting) to hidden political agendas (and even the names used for individual languages) can skew statistics significantly, and, at the end of the day, one is still not entirely sure whether the numbers are limited to native or near-native

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speakers (or speakers of the languages as first languages, which may or may not be the same thing), or include individuals who are able, or judge themselves able, to read, write, speak and/or merely understand the language in question6. We therefore suggest that the following statistics be taken only as rough guides and that the reader be wary of using them to make further statistical extrapolations. The languages are as follows: Albanian. In addition to speakers of Albanian in Albania itself, there are an additional 80,000 speakers in Italy (the Albanian spoken in Italy is called Arbëreshë; Price 2000 gives a figure of 100,000 speakers) and 150,000 speakers in Greece (the Albanian spoken in Greece is called Arvanitika). Aragones, spoken in the province of Huesca in Spain, specifically in the neighbourhood of four villages: Ansó, Ayerbe, Fonz and Benasque. Armenian, spoken, apart from Armenia itself (and neighbouring countries), in small communities in Cyprus (around 2,600 speakers), Poland (about 872 speakers), and Hungary (294 speakers). Asturian. The Asturias region of Spain has 1,083,576 inhabitants. Some 7.6% of the population of Asturias can understand, speak, read and write the language; 14.6% can understand, speak and read it; 26.8% can understand and speak it, and 33.4% can only understand it (Llera & San Martín 2003: 132). Basque, spoken in Spain, in the Autonomous Community of Navarre and in the Basque Autonomous Community, and also in France in some areas of the Département Pyrénées Atlantiques. The level of familiarity with and use of the language varies considerably by geographical area. The Basque Autonomous Community (Spain) is where the best organised plans for positive promotion have been set up and where the language receives most recognition, prestige, understanding and protection. See Aztiker (2002), Basque Government (2005), Hualde & Zuazo (2007). Belarusian, spoken by roughly eight million speakers in Belarus. There are an additonal 220,000 speakers of Belarusian in Poland. Bosnian, spoken in Slovenia. It is one of the three official languages of Bosnia and Herzegovina (the other two being Croatian and Serbian). Breton. According to Broudic (1999), the number of speakers of Breton, spoken in NW France, has decreased markedly: at the beginning of the 20th century there were around 1.5 million speakers, and in 1950 1.2 million speakers. Today, there are 369,000 speakers left.



Chapter 2.  Language diversity in the European Union

Bulgarian. Outside Bulgaria, the language is spoken in Greece (where it is called Pomak) by 30,000 inhabitants, and in Hungary. Catalan. There are 49,000 speakers in Andorra, 6.3 million in Spain, 203,000 in France, and 20,000 in Italy (Sardinia). Corsican, spoken on the island of Corsica (France), alongside French, which is the official language. According to Salminen (2005), the Corsican language is currently in danger of extinction. Greater protection for the language has been discussed as part of proposals for the increased autonomy of the region of Corsica from France. Croatian. Croatia itself is a candidate for EU membership, but there are also 103,000 speakers of Croatian in Austria, 32,132 in Hungary, and 3,500 in Italy. Croatian is also spoken in Slovenia. Cypriot Arabic, spoken by fewer than 1,000 people belonging to the Maronite community of Cyprus. Czech, spoken in the Czech Republic. Although with the establishment of the Czech Republic and Slovakia as independent nations, Czech and Slovak are now considered separate languages, they are in fact usually mutually intelligible. Danish. In addition to Denmark, Danish is spoken in Germany by 21,000 speakers, and in Greenland by 8,000. Although Greenland belongs to Denmark, it does not form part of the EU. Dutch, spoken in the Netherlands, Belgium, as well as in France on the Belgian border. English, the language of the UK and the bulk of the population of Ireland. It is also spoken in Gibraltar and on the island of Malta. Estonian. In addition to Estonia itself, there are 6,000 speakers of Estonian in Finland. There are also speakers of Estonian in Latvia (and in Russia: Nanovfszky 2004: 183). Faroese. Danish and Faroese are co-official in the Faeroe Islands, which belong to Denmark but are self-governing in most matters. Finnish. In addition to speakers in Finland, there are approximately 200,000 speakers of Finnish in Sweden. Franco-Provençal. Franco-Provençal is spoken in Switzerland, France and Italy.

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French. There are 51 million speakers of French in France (and its overseas territories), 4 million in Belgium, 100,000 in Italy and 13,100 in Luxembourg. Frisian, spoken in the Netherlands (350,000) and Germany (12,000). Friulian, spoken in Italy and some villages of Austria and Slovenia. Gagauzian, a Turkic language spoken (according to Jacques Leclerc, of the University of Laval) by a few of the 12,000 Gagauzian people living in Bulgaria. An additional 154,000 people in the Republic of Moldova have Gagauzian as their first language. Galician, spoken in Spain in the Autonomous Community of Galicia and some areas of Asturias, Leon and Zamora; and in northern Portugal. German. German is the most extensively spoken language of the EU. Ethnologue states that there are 75.3 million speakers in Germany, 7.5 million in Austria, 150,000 in Belgium, 50,000 in the Czech Republic, 23,000 in Denmark, 250,000 in Hungary, 225,000 in Italy, 10,900 in Luxembourg and 500,000 in Poland. German is also spoken in Switzerland. Greek. There are 9.9 million speakers in Greece, 578,000 in Cyprus and 20,000 in Italy. Hungarian, spoken by 10.45 million speakers in Hungary, 1.4 million in Romania, 15,000 in Austria, 765,000 in Slovakia, and 10,000 in Slovenia. Irish, spoken in Ireland and in areas of Ulster (UK). The Irish Constitution recognizes two official languages: Irish and English. However, Irish is spoken only by a small number of people. See Martí et al. (2005: 98). Italian, spoken in Italy, the southern edge of Switzerland, the French side of the Franco-Italian border, and by 4,000 speakers in Slovenia. Karelian, spoken in Finland. There are also 118,000 speakers of Karelian in the Russian Federation (Nanovfszky 2004: 193 gives a figure of 95,000). Kashubian, spoken in Poland. Estimates of the number of native speakers vary dramatically: Price (2000) claims 150,000, Moscal (2004) claims 52,600. The Ethnologue figures are still lower. Ladin, spoken in Italy, in the provinces of Bolzano, Trento and Belluno. Latgalian, spoken in Latvia. 150,000 people speak it as a mother tongue. In 1919, it was declared the official language of Latgale, a region of Latvia.



Chapter 2.  Language diversity in the European Union

However, the present Latvian legislation considers Latgalian a historic variant of the Latvian language, although others regard it as a separate language. Latvian, spoken by 1.6 million in Latvia and an additional 200,000 in Estonia, Russia, Belarus, and Lithuania. Lithuanian, spoken in Lithuania, and an official language since 1922. Luxembourgian. Luxembourg declared its three languages – French, German and Luxembourgian – official over the whole of its territory in the 1980s. Macedonian. In the Republic of Macedonia (a candidate for EU membership) there are 1.4 million speakers, with an additional 10,000 in Greece, 15,000 in Albania and 180,000 in Bulgaria. Macedonian is linguistically close to Bulgarian and regarded by many in Bulgaria as a variety of Bulgarian (Kramer 1999). Maltese. In Malta, “Maltese is the national language, and co-official with English according to the Constitution. It is the language of the Parliament and the Law Courts. It is spoken generally at all administrative levels, but most (. . .) writing is carried out in English” (Martí et al. 2005: 122). Meänkieli, spoken in the most northern parts of Sweden (mainly in Norrbotten), around the valley of the Torne River. From a linguistic point of view Meänkieli is a mutually intelligible dialect of Finnish, but for historical reasons it has been awarded the status of a minority language in Sweden. On April 1, 2002, Meänkieli became one of the five nationally recognized minority languages of Sweden. Mirandese, spoken in Portugal, close to the Spanish border, in the town of Miranda do Douro and environs. Some regard Mirandese as a variety of Asturian. Occitan, spoken in Spain (Val d’Aran) and between Italy and France. There are around 5,000 speakers in Spain. Occitan, under the name of Aranese, is the official language of the Pyrenean valley of Aran alongside Spanish and Catalan. Polish, spoken not only in Poland, but also by 240,000 in Germany and 50,000 in Slovakia. Portuguese. There are approximately 10 million speakers of Portuguese in Portugal itself, but in excess of 177 million worldwide.

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Romani. Liégeois (1992) says that policies have always favoured denial of the existence of the Gypsy people, their culture and their language, and Hagège (2000) points out that many speakers of Romani have disappeared through various attempted genocides. “There are a large number of Gypsies in Hungary, the Former Yugoslav Republic of Macedonia, and Romania, and they can be found in smaller numbers in other countries in Western and Eastern Europe . . . Romani is perhaps one of the European languages whose outlook is most uncertain and inevitably tied to marginalisation and assimilation of the Gypsy People” (Martí et al. 2005: 70). Romani is, however, an officially recognised minority language of Sweden, co-official in 79 rural communes and in one town (Budesti) in Romania, and the official language of Shuto Orizari (Macedonia) alongside Macedonian. Romanian, spoken in Romania and by 100,000 in Hungary. Russian, spoken also as a native language in Estonia (474,834 speakers), Latvia (861,600) and Lithuania (562,000). Through the influence of the Soviet Union, Russian has been until recently one of the most widely spoken foreign languages in countries surrounding Russia, such as Poland, Slovakia and the Czech Republic. Rusyn, also referred to as Ruthenian, Carpato-Ukrainian, or Lemkish, spoken in Slovakia, in the region of Preshow, and in Poland, in the Lemko region. It is also spoken in Ukraine, in NW Serbia (it is one of the official languages of the Serbian Autonomous Province of Vojvodina) and in eastern Croatia. Rusyn is regarded by some as a dialect of Ukrainian and by others as a distinct language. See Magosci (1993). Sami. Sami speakers are to be found in territory belonging to Norway, Sweden, Finland and the Russian Federation. See M. Aikio (1990), Helander (1990, 1994), Magga (1990), Kuoljok & Utsi (1993), Nanovfszky (2004). Sardinian, spoken on the island of Sardinia, Italy, it has recently been recognised as an official regional language in the Sardinian Autonomous Region; it can therefore be used for official purposes on the island. Scottish Gaelic. In 1891, Scottish Gaelic had 254,415 speakers (Aitken & McArthur 1979). The 1991 census shows only 69,510 able to “speak, read or write” Gaelic and 65,978 able to speak it. The numbers had declined to 65,674 and 58,652 by the time of the 2001 census. Therefore, of Scotland’s 5.5 million inhabitants, only a little over 1% speak the language. It receives some government support, but does not have formal official status, although it does have limited government recognition.



Chapter 2.  Language diversity in the European Union

Serbian, outside Serbia, spoken also by a small minority in Hungary. In Slovenia, 31,329 people indicate that Serbian is their first language, while another 36,265 indicate Serbo-Croatian (see Croatian, above). Slovak. Slovak is spoken in Slovakia by 4.9 million speakers, in Hungary by 11,000, and in Serbia by 80,000 speakers. It is also spoken in Ukraine, Poland, the Czech Republic, Croatia and Romania. Slovenian. In addition to Slovenia, Slovenian is also spoken in Austria (30,000 speakers) and in Italy (100,000). Sorbian, spoken in Germany. According to Martí et al. (2005), the language is in danger because “in many Sorbian-German marriages (and also in SorbianSorbian marriages), the parents do not pass on their mother tongue (Sorbian) to their children. Many parents think it is difficult for their children to learn two languages from the start and they reject Sorbian because they think German is the more important and useful language.” Spanish. According to Crystal (1997), Spanish is official or co-official in 20 states in the world. Swedish. Swedish has 7.8 million speakers in Sweden and 300,000 in Finland. Citizens of the Finland-Swedish minority, about 5% of the Finnish population, have the right to communicate with the authorities in their mother tongue. Moreover, after an educational reform took place in the 1970s, both Swedish and Finnish are compulsory school subjects. Tatar. While there are some 5 million speakers of Tatar in Russia, Tatars have been living in Estonia since the 1870s. There were 4,058 Tatars in Estonia in 1989, 3,315 in 1997 and 2,582 in 2000, of whom 1,229 (47.6%) spoke Tatar as a mother tongue, 1,295 Russian and 51 Estonian. Turkish, spoken in the EU in Germany (as an immigrant language), Bulgaria (845,000), Cyprus (177,000), Greece (128,380), and Romania (28,000). Ukrainian, also spoken in Poland (around Chelm), in the border area between Ukraine and Poland around the San River valley (Ukraine) and across the border in the Subcarpathian Voivodship (Poland). Walachian, also known as Aromanian or Vlach, spoken in areas of northern Greece and in Bulgaria (the Aromanians are also recognized as a minority in Macedonia).

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Welsh. Wales has approximately 2.5 million inhabitants, of whom some 20% claim to have knowledge of Welsh. Of these, 69% can speak, read and write the language; 17% can only speak it. The rest can either speak and read, speak and write or simply read and write. Yiddish. In 2005 there were 3 million speakers of Eastern Yiddish. Western Yiddish is reported to have had an “ethnic population” of slightly below 50,000 in 2000. There are Yiddish-speaking communities in some eastern European countries (Estonia, Lithuania, Hungary, Poland, and the Czech Republic). In 2000, Sweden recognised Yiddish with four other minority languages: Finnish, Meänkieli, Sami and Romani.

Four virtually extinct languages, or languages currently returning from extinction as examples of language revival, should be added to this list: Cornish, spoken in Cornwall (UK). About 2,000 people understand the language to some degree and have varying experience in using it. About 200 claim fluency. Cornish is an interesting case in that it has no native speakers, having become extinct. What is now occurring is a case of language revival (see Payton 2004). Karaim. All together, around 2,800 people speak Karaim: 291 people in Lithuania, 680 in Russia, 1,400 in Crimea (Ukraine), fewer than 100 in Poland, fewer than 100 in Turkey, and several hundred in Israel. According to Schur (1995), M. El-Kodsi found 280 Karaites in Lithuania in 1991: 150 in Vilna, 50 in Panevezys and 80 in Troki. In Poland, M. El-Kodsi found some 150 Karaites in 1991: 50 each in Warsaw, Gdansk and Varcelova and four in Pele. Livonian, spoken in Latvia. This Finno-Ugric language is almost extinct, with only a handful of speakers of Livonian remaining (Nanovfszky 2004:199 gives the number as six). The UNESCO Red Book on endangered languages (Salminen 2005) describes Livonian as a nearly extinct language – though there are efforts at revival (Nanovfszky 2004: 201). Manx. The Isle of Man holds neither membership nor associate membership in the European Union. Although the UK takes care of its external and defence affairs, and retains paramount power to legislate for the island (it is a Crown dependency), the Isle of Man is self-governing. According to official census figures, 9.1% of the population claimed to speak Manx in 1901; in 1921 the percentage was only 1.1%. By the mid-20th century, only a few elderly native speakers remained (the last died in 1974), but by then a scholarly revival had begun to spread to the populace and many had learned Manx as a second language. In this respect, Manx resembles Cornish as a revived language. In the 2001 census, 1,689 out of a



Chapter 2.  Language diversity in the European Union

population of about 71,000 claimed to have some knowledge of Manx. See Nettle & Romaine (2000). Finally, there is a significant quantity of sign languages used by deaf people throughout the EU.7 Although most of these sign languages do not have official status, some do (thus Swedish Sign Language has had official status for deaf people in Sweden since 1981). In addition, in practice in the EU the deaf are widely provided with interpreters and other accommodations regardless of explicit constitutional or legal guarantees. These sign languages are most often passed on from student to student in residential schools for the deaf. These sign languages are not related to the spoken language in the surrounding hearing community – that is to say that, for example, French Sign Language is not simply French in a gestural/visual modality, but rather is a completely separate language with its own linguistic system. Among the identified sign languages used in the EU are the following: ustrian Sign Language A Belgian Sign Language British Sign Language Catalonian Sign Language Czech Sign Language Danish Sign Language Dutch Sign Language Estonian Sign Language Finnish Sign Language Finnish-Swedish Sign Language8 French Sign Language German Sign Language Greek Sign Language Hungarian Sign Language Irish Sign Language Italian Sign Language Latvian Sign Language Lithuanian Sign Language Lyons Sign Language9 Maltese Sign Language Norwegian Sign Language Polish Sign Language Portuguese Sign Language Slovakian Sign Language Spanish Sign Language Swedish Sign Language

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S wiss-French Sign Language10 Swiss-German Sign Language Swiss-Italian Sign Language

In spite of having 7% of the world’s total population, the EU thus includes only 1% of the world’s linguistic diversity (with Europe as a whole including only 3% of that diversity) (see European Commission 2006). Why is this so? The reasons are historical, economic, political and cultural. Nevertheless, most of the governments of the 27 member states of the EU have applied and are still applying all too efficient policies of discrimination, marginalisation and assimilation (Martí et al. 2005).

Speakers of languages in the EU There are many ways of classifying the languages spoken in the EU. The following estimates are based on “native speakers” (a slippery category that requires that we take these statistics only as a very rough guide: see our caveat above) within the EU. Thus, the figures provided may seem in some instances quite low (as in the case of English), because neither native speakers in other parts of the world, nor second or additional language users are included. Using the approximate number of native speakers of the language as the criterion for classification in this manner, the languages of the EU can be divided into three groups: those with more than ten million native speakers, those with between one million and ten million, and last, those with fewer than one million. The first group of languages consists of those languages with more than ten million speakers each – in all, 411 million EU citizens – meaning that nearly 85% the EU population of around 490 million speaks fewer than 20% of its languages. These languages, in order of the number of native speakers in the EU, are: erman (c. 84 million) G English (c. 55 million) French (c. 55 million) Italian (c. 55 million) Spanish (c. 40 million) Polish (c. 39 million) Dutch (c. 21 million) Romanian (c. 19 million) Hungarian (c. 12 million) Greek (c. 10.5 million)



Chapter 2.  Language diversity in the European Union

zech (c. 10.3 million) C Portuguese (c. 10 million)

Although the future of these languages is not based solely on the number of native speakers, this group seems to be very prosperous. The existence of independent political states associated with these languages has meant that they enjoy a favourable situation (Martí et al. 2005). Moreover, as well as being official in their own countries and in the EU, a few of these eleven languages, such as English, French, Portuguese and Spanish, are among the most widespread languages of the world. English, Spanish, French and Portuguese are today official languages in most of America and Africa, and in large areas of Asia and the Pacific. According to Crystal (1997), English is the official or co-official language in more than 70 states of the world, French in 30 states, Portuguese in 6 states and Spanish in 20 states. The second group of languages in the EU comprises fifteen languages having between approximately one million and ten million speakers. In order of the number of native speakers in the EU, these languages are: ulgarian (c. 8.5 million) B Swedish (c. 8 million) Catalan (c. 6 million) Slovak (c. 5.5 million) Danish (c. 5 million) Finnish (c. 4.7 million) Galician (c. 3 million) Lithuanian (c. 2.9 million) Slovenian (c. 2 million) Russian (c. 1.9 million) Latvian (c. 1.8 million) Sardinian (c. 1.6 million) Occitan (c. 1.5 million) Romani (c. 1.5 million) Estonian (c. 1 million)

Most of the languages in this group lack the power and distribution of the languages in the former group, but most of them are official both in their own states and in the EU. Nevertheless, some of the languages with more than one million speakers, such as Romani, or others in a minority situation, such as Occitan, seem to have a very uncertain future unless decisive actions are taken in their favour. As mentioned previously, the longevity of the languages does not lie only in the number of speakers. Although Russian has been included in this group, its significant place in some of the member states (and, of course, its status as a major language

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outside of the EU) should be taken into account. For example, in Estonia some communities located near the Russian border have Russian as their dominant language, and in Latvia and Lithuania 29% and 6% of the population, respectively, is Russian-speaking. Furthermore, Russian is one of the most widely spoken foreign languages in countries surrounding Russia, such as Lithuania (where 83% of the total population speaks some Russian), Latvia (59%), Estonia (53%), Poland (28%), Slovakia (30%) and the Czech Republic (21%) (See Eurobarometer, Report Number 50). It is important to note here that these percentages refer to individuals who have studied Russian as a second or foreign language, rather than to native speakers. The third group of languages in the EU includes languages with fewer than one million native speakers, as well as all of the sign languages mentioned earlier. Estimates for numbers of speakers of various sign languages are difficult to obtain, but are, without exception, tiny compared to other languages. As for the other (spoken) languages with less than one million native speakers, listed here, statistics on numbers of speakers vary wildly. Because of this difficulty, the list is presented in alphabetical order (we exclude Cornish, which has no native speakers, and Manx). lbanian A Aragones Armenian Asturian Basque Belarusian Bosnian Breton Corsican Croatian Cypriot Arabic Faroese Franco-Provençal Frisian Friulian Gagauzian Irish Karaim Karelian Kashubian Ladin Latgalian



Chapter 2.  Language diversity in the European Union

ivonian L Luxembourgian Meänkieli Macedonian Maltese Mirandese Rusyn Sami Scottish Gaelic Serbian Sorbian Tatar Turkish Ukrainian Walachian Welsh Yiddish

There are three languages in this list (Irish, Maltese and Luxembourgian) which are official in their respective EU member states, and nine languages which are official in other European states outside the EU (Albanian, Armenian, Belarusian, Bosnian, Croatian, Macedonian, Serbian, Turkish, and Ukrainian), the others being considered minority languages, meaning that they are only spoken by a minority of the population of a state. There are two additional languages spoken in the UK that need to be mentioned here as well: Cornish and Manx. Although these languages were extinct (the last native speaker of Cornish, for instance, died in 1777), language revival efforts are currently underway for both of them, and each has a small but vibrant speaker community. The political status of the Isle of Man is, however, unusual (see above). We can further distinguish three groups among these minority languages. First, there is the singular case of Irish, the national language and main official language of the Republic of Ireland, and an official and working language of the EU. Second, there are 13 languages that have co-official status or some kind of ­official recognition at the substate level. These languages are: asque B Faroese Franco-Provençal Frisian Friulian

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adin L Meänkieli Mirandese Sami Scottish Gaelic Sorbian Welsh Yiddish

The remaining 14 indigenous languages include the most threatened of the languages in the EU, as well as languages with small numbers of speakers in the EU but larger numbers and/or official status outside of the EU. These languages are: ragones A Asturian Breton Corsican Cypriot Arabic Gagauzian Karaim Karelian Kashubian Latgalian Livonian Rusyn Tatar Walachian

Nettle (1999) indicates the figure of 10,000 speakers as the threshold below which a language can have problems surviving. In the EU, four languages have around 10,000 speakers – Aragones, Karelian, Mirandese and Macedonian, and six languages have fewer than 10,000 speakers – Armenian (4,000), Cornish (200), Cypriot Arabic (under 1000), Karaim (400), Livonian (10), Tatar (around 2000) (we do not include the special case of Manx; see above). Armenian, Macedonian and Tatar, though numerically tiny in the EU itself, are official languages elsewhere (Tatar is a formally recognised regional language in Russia), and Karelian and Gagauzian have a considerably larger population outside the EU than within it, but, with these exceptions, there is a strong possibility that the other languages will be extinct in a matter of years. To summarize, the EU can be considered a diverse community even though it has fewer languages than other parts of the world; that is, there are only 68 spoken languages native to the territory covered by the EU (1% of the world’s spoken



Chapter 2.  Language diversity in the European Union

languages, and 34% of all European autochthonous languages, if we agree that there are 200 [spoken] languages in Europe). Very few languages are widely distributed and most are spoken by relatively few people. As we have noted, some 85% of the EU population – 411 million citizens – is registered as speaking under 20% of all EU languages (please note our caveat about immigrant languages, which are not included in this survey: see above). Upwards of half of all EU languages can be classified as minority languages, and they are spoken (as first languages, or native languages, or additional languages – depending on the way the question is posed, the statistics are gathered, and minority status is defined) by only a very small percentage of the population. In most cases, the official status and the sociolinguistic situation of the languages correspond to the number of speakers.11

Language status and language policy in the EU Different methods for dealing with language diversity are used by member states within their borders. We can distinguish five principal models with respect to the issue of official status: •

Member states with a single official language: Bulgaria, Estonia, France, Greece, Latvia, Lithuania, and Poland. • Member states with a single official language, but in which other languages enjoy certain state support in some parts of the country or official recognition limited to particular municipalities: Austria, the Czech Republic, Germany, Hungary, Portugal, Romania, Slovakia, Slovenia, Sweden, and the United Kingdom. • Member states which recognise co-official languages in certain geographical areas: Spain, Denmark, the Netherlands and Italy. • Member states which are language federations: Belgium. • Bilingual and multilingual member states: Cyprus, Finland, Ireland, Luxembourg, and Malta.

1.

Member states with a single official language: Bulgaria, France, Estonia, Latvia, Lithuania, Greece, and Poland

There are seven states within the EU which have a single official language and encourage its exclusive use (the best known example of this language model is France). The language policy followed by these countries is based on the belief that the use of just one language facilitates the cohesion and progress of the state.



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In other words, these states have married the concepts of a common language, nation and state (Lastra 1992), and hold to the view that a modern state must have a single language common to all its citizens. The consequences of this policy have been to marginalise other languages, lower their prestige, endanger them and even cause their disappearance (Crystal 2000). Moreover, the states following this language model generally promote a monolingual school system, which poses enormous contradictions for minority language communities. Consider the evolution of Breton in France: as we have already noted, at the end of the nineteenth century Breton had almost one and a half million speakers. Nowadays, there are around 369,000. But Breton is not alone. A similar situation confronts all minority languages in France, such as Basque, Catalan, Corsican, Franco-Provençal and Occitan. The same is true of Tatar in Estonia, Romani throughout Eastern Europe, and Kashubian in Poland. If language policy is not changed in these countries, all these languages are in danger of disappearing in the near future. In addition, in several of these cases language policy is explicitly utilised for ideological and political ends. In Estonia, Latvia, and Lithuania, for example, such policies are clearly directed at the deliberate assimilation of speakers of Russian.

2.

Member states with a single official language, but in which other lan- guages enjoy certain state support in some parts of the country or official recognition limited to particular municipalities: Austria, the Czech Republic, Germany, Hungary, Portugal, Romania, Slovakia, Slovenia, Sweden, and the United Kingdom

Ten member states of the EU, apart from having one official language, recognise other languages in some geographic regions of the country, usually in specific municipalities or areas. In 2002, Sweden recognised Sami as its fifth minority language (the others, previously recognized, are Meänkieli, Standard Finnish, Romani and Yiddish), giving it formal standing in government agencies, courts, preschools and nursing homes in four municipalities (Arjeplog, Gällivare, Jokkmokk and Kiruna). As we have already noted, Sweden has also recognised Swedish Sign Language. Italian is co-official in some cities of Istria (Slovenia), as is Mirandese in some municipalities of northeastern Portugal, mainly in Miranda do Douro and surrounding areas, where it was granted official recognition by the Portuguese Parliament in 1998. In the United Kingdom, Welsh, Scottish Gaelic, Cornish, Manx and Irish do not enjoy official status in their respective territories (Wales, Scotland, Cornwall, the Isle of Man, and Northern Ireland). Consequently, English is slowly spreading



Chapter 2.  Language diversity in the European Union

in the traditional territories of these languages (Moreno Cabrera 2000). Certainly, the Welsh Language Act of 1993 purports to give “effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that in the conduct of public business and the administration of justice in Wales the English and Welsh languages should be treated on a basis of equality,” but it does not accord individual linguistic rights to Welsh speakers. However, it should be noted that while this is true in broad terms, Welsh speakers do in fact have an absolute right to use the language in courts of law, which is certainly, albeit in only one domain, an individual linguistic right. In the case of Welsh, a language board has been established to promote and facilitate the use of the language, and in particular to advise public bodies which provide services to the public in Wales, on the ways in which effect may be given to the principle of treatment “on a basis of equality.” A further example of such a policy is found in Romania, where “there are two hours a week on Romanian television for the Roms. There are five magazines for the Roms with writing in Romany. There are also three radio programmes in Romany” (Martí et al. 2005: 206). Also focused on the domain of language use rather than on a particular geographic area, this case would appear to be similar to the others included here, although no official status is granted to Romani. Because they do not enjoy official status, most of the languages in this group may have difficulty in surviving, in spite of having limited state support.

3.

Member states which recognise co-official languages in certain geographical areas: Spain, Denmark, the Netherlands and Italy

Four EU member states, instead of having several official state languages, have chosen to have a single official language in the country as a whole, while granting official status to regional languages in the territory in which they are spoken, alongside the official language of the state as a whole. For example, Catalan, Galician, Basque, Faroese, Frisian, Sardinian, Friulian, Ladin and Occitan are all official only in some areas of the relevant countries (Spain, Denmark, the Netherlands and Italy). This is also the case, for instance, of Frisian in Germany, where Frisian is officially protected as a minority language, according to the European Charter for Regional or Minority Languages, in the province of Schleswig-Holstein and in the Saterland region of Lower Saxony. Although German politicians are currently passing laws to promote this language, there remain serious problems implementing these laws. As Hagège (2000) points out, an officially recognised language has a degree of legal protection, and this is the first step toward the preservation and promotion of a minority language – but having official status

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does not mean that the future of a language is secure: such recognition mush be accompanied by decisive action in its favour. For instance, on the other side of the German border, in Friesland, a province of the northern Netherlands, Frisian enjoys a status equivalent to Dutch as the official language of the territory. For all these efforts on behalf of Frisian, it remains one of the most endangered minority languages in the EU (Fishman 1991). The Basque language took a very important step forward when it was proclaimed an official language in the Basque Autonomous Community in 1979 and in the Autonomous Community of Navarre in 1982. This recognition was arguably a key step for the survival of the language, although there remain many problems in preserving this linguistic heritage, especially in Navarre, due to the fact that any action, law, movement or initiative taken in favour of preserving Basque is apt to be resisted by the current regional government. The countries included in this group may, of course, grant official status to some languages while denying the same status to other languages spoken within their territory. For instance, Basque, Catalan, Galician and Occitan are official in Spain, while Asturian is not. As we have noted, in some cases the same linguistic community extends to territories belonging to different states: sometimes a language is co-official in one state and not recognized at all in another. Examples of this phenomenon include Basque (Spain and France) and Occitan (France, Spain and Italy). As long as this situation does not change, such linguistic communities will have difficulties promoting the language and surviving.

4.

Member states which are language federations: Belgium

Belgium is the only language federation in the EU at the present time. Three languages – Dutch, French and German– are official. The three are prestigious languages, and they are all promoted. Belgium is divided into three communities, the Dutch-speaking Flemish community, the French-speaking community and the German-speaking community. At the same time, it is also divided into three regions: Brussels, mainly consisting of a mixed Dutch- and French-speaking population of 980,000; the Flemish region, mainly Dutch-speaking, with 5.9 million inhabitants; and Wallonia, mainly French-speaking, with 3.36 million inhabitants. About 60 percent of the country is therefore Dutch-speaking; French is the second-most-spoken language (with about 40 percent) and finally German is spoken only by less than 1% of the population. Although each language has a completely different sociolinguistic situation, all three languages are official and treated as such. It is also important to note that Belgium is a federal country, and



Chapter 2.  Language diversity in the European Union

so Dutch and French, in particular, have relatively little standing outside their own regions.

5 .

Bilingual and multilingual member states: Cyprus, Finland, Ireland,  Luxembourg, and Malta

There are five bilingual and/or multilingual countries in the EU: Cyprus (Greek and Turkish), Finland (Finnish and Swedish), Ireland (Irish and English), Luxembourg (French, German and Luxembourgian), and Malta (Maltese and English). With the exception of Cyprus, where a special political situation exists, in all the other member states the constitution indicates that there is more than one official language in the country. Consequently, in theory, all constitutional languages are protected by the law. According to its constitution, Finland is a bilingual country; that is to say, citizens of the Swedish-speaking minority, constituting about 5% of the Finnish population, have the right to communicate with the authorities in their mother tongue. Moreover, since the educational reform of the 1970s, both Swedish and Finnish are not only compulsory school subjects, but are also mandatory in final examinations. Nonetheless, even in Swedish-speaking towns and municipalities, Finnish is the dominant language. The Sami people living in Finland were also granted the right to use the Sami language for all government services by the Sami Language Act of 1991 (P. Aikio 1994). Finally, the Sami Language Act of 2003 granted the Sami language official status in five municipalities of Finland. Ireland is also a bilingual country. The constitution recognizes two official languages, Irish being the “national language” of the Republic of Ireland and its main official language, and English the second official language. However, English is spoken by the majority of the population and Irish only by a small number. Thus, official bilingualism does not necessarily mean all languages mentioned in the constitution are equally secured.

Conclusion To understand the sociolinguistic map of the EU, we must take into account that various member states use different criteria to deal with language diversity: a wide variety of legislation, policies and constitutional provisions deals with language issues. In this chapter we have provided a brief overview of explicit official language policies in EU member states, but this is only the tip of the iceberg for understanding the complexities and intricacies of language matters in the EU. Perhaps

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as important as the official language policies of member states are policies at the macro-level that address the EU as a multinational and multilingual community, and policies at the micro-level that define the individual’s language rights. These are both areas in which there has been extensive debate and both political and scholarly discussion in recent years. Furthermore, they are both areas in which no consensus has been reached in spite of the urgency to do so. And, of course, as the EU expands, the challenges at both levels will only increase. The lack of decision in these areas may constitute, unfortunately, a decision in its own right. If the EU as a whole continues to avoid making difficult macrolevel decisions, and if individual member states continue to be reluctant to pass legislation on minority languages, this may well result in damage to currently endangered languages in the EU. We believe that public debate is essential in four broad areas: •

The role of languages which currently lack formal recognition within the EU; • The situation of linguistic communities that speak official languages of the EU but whose linguistic rights are not protected in the areas where these communities are settled; • Criteria for the linguistic operation of the institutions of the EU; • Most importantly, the prospects for a global language policy for the EU. What is intriguing to us is that none of these issues is new or novel. They are all issues about which there are extensive bodies of relevant literature, and about which thoughtful individuals have spent a great deal of time and effort (see, for instance, Extra & Gorter 2001, Fettes & Bolduc 1998, Maurais & Morris 2003, Phillipson 2003, Spolsky 2004, and Wright 2004). And yet, decisions continue to be avoided, perhaps for understandable political reasons. In any event, we would hope that this volume, and the chapters it contains, would help to advance this important on-going dialogue, and might perhaps even serve to elevate the discussion.

Notes 1. Unless otherwise indicated, estimates for the numbers of speakers for particular languages discussed in this chapter are drawn from either Ethnologue (see Grimes 2000) or from Euromasaic data. 2. Luxembourgian (Lëtzeburgesch) is an official language in Luxembourg; Meänkieli has official recognition in Sweden; and Rusyn is one of the official languages of the Serbian Autonomous Province of Vojvodina.



Chapter 2.  Language diversity in the European Union

3. The Võro language is a dialect of Estonian, but it has its own literary language and is in search of official recognition as an autochthonous regional language of Estonia. We do not mention Zimbrian, or Cimbrian, in our list of languages, but its situation is not dissimilar. Cimbrian is an ancient Bavarian dialect, but now sufficiently isolated as to constitute a distinct idiom – and it enjoys protection under Italian State Law 482 (see Coluzzi 2005). Does this make it a language, and does it make it official? We are very aware of the relative arbitrariness of the language/dialect distinction. The question of what constitutes an “official” language is again a vexed and ultimately somewhat subjective issue. We return to this issue later in the chapter. 4. For a review both of the smaller languages of Europe and of immigrant languages, see Extra & Gorter 2001. 5. The list is based in part on Martí et al. 2005 and in part on data from Euromosaic, http:// europa.eu.int/comm/education/policies/lang/languages/langmin/euromosaic/index_en.html. For Bulgaria and Romania, see http://www.tlfq.ulaval.ca/axl/europe/europeacc.htm. Additional information comes from Grimes 2000. We have limited our survey to the continent of Europe, omitting languages indigenous to French overseas territories and to the Spanish enclaves in North Africa. We have also omitted Esperanto, spoken as a second language by small numbers of people in most EU countries, and occasionally as a native language. On languages supported by the European Bureau for Lesser-Used Languages (EBLUL), see Ammon 2003. 6. Of course, the relationship between these skills will vary greatly, and native ability to speak may not signify, even among those literate in other languages, the ability to read or write the language. Thus, in the 2001 UK census, 58,652 people claim to speak Scottish Gaelic, but only 45,320 read it and 33,814 write it. The two latter figures are actually higher than they were ten years ago – probably an indication that the language is receiving more serious attention in the schools, possibly among non-native speakers. On the problems of linguistic data-gathering, see Edwards 1994: 35–39. 7. See Reagan (2006). Tove Skutnabb-Kangas has gone so far as to suggest that, “There may be as many Sign languages as oral languages – all fully-fledged languages, logical, systematic, capable of expressing everything in the world, provided enough resources are devoted to their development – just as all oral languages are fully-fledged languages, logical, and so on . . .” (2000: 226). 8. Finnish-Swedish Sign Language is a remnant of a closed Swedish school for the deaf. It is used only by older adults in private spheres, and there are at most 150 users. 9. Lyons Sign Language is used in an area approximately 250 miles from Paris. No figures are available on the number of users. Interestingly, LSL has little mutual intelligibility with French Sign Language. 10. In Switzerland, there are three distinct sign languages, each a variety of the sign language used by the hearing linguistic community in the relevant country; thus, Swiss-French Sign Language is related to French Sign Language, Swiss-German Sign Language is related to German Sign Language, and Swiss-Italian Sign Language is related to Italian Sign Language. In all three cases, however, the Swiss variety is distinctive.

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11. Ammon 2005 provides a useful taxonomy of languages used in Europe, ranging from “European lingua franca(s)” at the top to “languages with debated language or dialect status” and “dialects” at the bottom.

References Aitken, A.J. & Tom McArthur. 1979. Languages of Scotland. Edinburgh: Chambers. Aikio, Marjut. 1990. “The Finnish Perspective: Language and Ethnicity”. Arctic Languages: An Awakening, ed. by Dirmid R. F. Collis, 367–400. Paris: UNESCO. Aikio, Pekka. 1994. “Development of the Political Status of the Sami People in Finland.” Diedut 1.39–43. Ammon, Ulrich. 2003. “Present and Future Language Conflicts as a Consequence of the Integration and Expansion of the European Union (EU)”. Ecologia Linguistica, ed. by Ada Valentini, Piera Molinelli, Pierluigi Cuzzolin & Giuliano Bernini, 393–405. Rome: Bulzoni. Ammon, Ulrich. 2005. “Some Problems of EU Language Policy and Discussion of Possible Solutions.” Atti del 4º congresso di studi dell’Associazione Italiana di Linguistica Applicata, Modena, 2004, ed. by Giorgio Banti, Antonietta Marra & Edoardo Vineis, 193–207. Perugia: Guerra. Aztiker Ikergunea. 2002. Euskal Herria Datuen Talaiatik. Astigarraga: Udalbiltza. Baker, Philip & John Eversley. 2000. Multilingual Capital: The Languages of London’s Schoolchildren and Their Relevance to Economic, Social and Educational Policies. London: Battlebridge Publications. Basque Government. 2005. III. Mapa Soziolinguistikoa. Vitoria-Gasteiz: Basque Government Publishing. Broudic, Fañch. 1999. “L’ évolution des bilingues bretonnants au XXe siècle”. Klask 5.179–192. Cerquiglini, Bernard. 1999. “Les langues de la France”. Rapport au Ministre de l’Education Nationale, de la Recherche et de la Technologie, et à la Ministre de la Culture et de la Communication, Paris, April 1999. http://www.culture.gouv.fr/culture/dglf/lang-reg/rapport_cerquiglini/langues-france.html#ancre276758) Coluzzi, Paolo. 2005. “Language Planning for the Smallest Language Minority in Italy: The Cimbrians of Veneto and Trentino-Alto Adige”. Language Problems and Language Planning 29.3: 247–269. Comrie, Bernard, Stephen Matthews & Maria Polinsky. 1996. The Atlas of Languages: The Origin and Development of Languages Throughout the World. New York: Facts On File. Crystal, David. 1997. English as a Global Language. Cambridge: Cambridge University Press. Crystal, David. 2000. Language Death. Cambridge: Cambridge University Press. Dixon, Robert M.W. 1997. The Rise and Fall of Languages. Cambridge: Cambridge University  Press. Edwards, John. 1994. Multilingualism. London: Routledge. European Commission. 2006. EU Integration Seen Through Statistics: Key Facts of 18 Policy Areas. Luxembourg: Eurostat. Extra, Guus & Durk Gorter, eds. 2001. The Other Languages of Europe. Clevedon: Multilingual Matters.



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Fettes, Mark & Suzanne Bolduc, eds. 1998. Al Lingva Demokratio / Towards Linguistic Democracy / Vers la Démocratie Linguistique. Rotterdam: Universala Esperanto-Asocio. Fishman, Joshua. 1991. Reversing Language Shift: Theoretical and Empirical Assistance to Threatened Languages. Clevedon: Multilingual Matters. Grimes, Barbara, ed. 2000. Ethnologue: Languages of the World (13th ed.). Dallas: Summer Institute of Linguistics. See also www.ethnologue.com. Hagège, Claude. 2000. Halte à la mort des langues. Paris: Odile Jacob. Hale, Ken, and others. 1992. “Endangered Languages.” Language 68.1: 1–42. Helander, Elinia. 1990. “Situation of the Sámi Language in Sweden”. Arctic Languages: An Awakening, ed. by Dirmid R. F. Collis, 401–417. Paris: UNESCO. Helander, Elinia. 1994. “The Sami People: Demographics, Origin, Economy, Culture”. Diedut 1.23–34. Hualde, José Ignacio & Koldo Zuazo. 2007. “The Standardization of the Basque Language”. Language Problems and Language Planning 31.2: 143–168. Junyent, Carme. 1999. La Diversidad Lingüística: Didáctica y Recorrido de las Lenguas del Mundo. Barcelona: Octaedro. Kramer, Christina. 1999. “Official Language, Minority Language, No Language at All: The History of Macedonian in Primary Education in the Balkans”. Language Problems and Language Planning 23.3: 233–250. Kuoljok, Sunna & John Erling Utsi. 1993. The Sami: People of the Sun and Wind. Ájtte & Jokkmokk: Swedish Mountain & Saami Museum. Lastra, Yolanda. 1992. Sociolingüística para Hispanoamericanos. México: El Colegio de México. Liégeois, Jean-Pierre. 1992. “Les Tsiganes: Situation d´une minorité non territoriale.” Les Minorités en Europe: Droits linguistiques et droits de l´homme ed. by Henri Giordan, 419–443. Paris: Kimé. Llera, Francisco & Pablo San Martín. 2003. II Estudio Sociolingüístico de Asturias 2002. Uviéu: Academia de la Llingua Asturiana. Magga, Ole Henrik. 1990. “The Sámi Language in Norway”. Arctic Languages: An Awakening, ed. by Dirmid R. F. Collis, 419–436. Paris: UNESCO. Magosci, Paul Robert, ed. 1993. The Persistence of Regional Cultures: Rusyns and Ukrainians in the Carpathian Homeland and Abroad. New Jersey: East European Monographs. Martí, Felix, Paul Ortega, Andoni Barreña, Itziar Idiazabal, Patxi Juaristi, Carme Junyent, Belen Uranga & Estibaliz Amorrortu. 2005. Words and Worlds: World Languages Review. Clevedon: Multilingual Matters. See also www.amarauna-languages.com Maurais, Jacques & Michael Morris, eds. 2003. Languages in a Globalising World. Cambridge: Cambridge University Press. Moreno Cabrera, Juan Carlos. 2000. La dignidad e igualdad de las lenguas: Crítica de la discriminación lingüística. Madrid: Alianza Editorial. Moskal, Marta. 2004. “Language Policy and Protection of Endangered Languages in Poland”. Endangered Languages and Linguistics Rights: On the Margins of Nations ed. by Joan A. Argenter & R. McKenna Brown, 93–98. Barcelona: FEL. Nanovfszky, György, ed. 2004. The Finno-Ugric World. Budapest: Teleki László Foundation. Nettle, Daniel. 1999. Linguistic Diversity. New York: Oxford University Press. Nettle, Daniel & Suzanne Romaine. 2000. Vanishing Voices. The Extinction of the World´s Languages. Oxford: Oxford University Press. Payton, Philip. 2004. Cornwall: A History. Fowey: Cornwall Editions. Phillipson, Robert. 2003. English-Only Europe? Challenging Language Policy. London: Routledge.

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Price, Glanville. 2000. Encyclopedia of the Languages of Europe. Oxford: Blackwell. Reagan, Timothy. 2006. “Language Policy and Sign Languages”. An Introduction to Language Policy: Theory and Method ed. by Thomas Ricento, 329–345. Oxford: Blackwell. Salminen, Tapani. 2005. UNESCO Red Book on Endangered Languages: Europe. Paris: Unesco. See also http://www.helsinki.fi/~tasalmin/europe_index.html#biblio. Schur, Nathan. 1995. The Karaite Encyclopedia. Frankfurt: Peter Lang. Siguán, Miquel. 1995. La Europa de las lenguas. Barcelona: Edicions 62. Skutnabb-Kangas, Tove. 2000. Linguistic Genocide in Education – or Worldwide Diversity and Human Rights? Mahwah, NJ: Erlbaum. Spolsky, Bernard. 2004. Language Policy. Cambridge: Cambridge University Press. Wright, Sue. 2004. Language Policy and Language Planning: From Nationalism to Globalisation. London: Palgrave. Wurm, Stephen. 2001. Atlas of the World’s Languages in Danger of Disappearing. Paris & Canberra: UNESCO Publishing & Pacific Linguistics.

Web sources www.amarauna-languages.com www.ethnologue.com http://europa.eu.int/comm/education/policies/lang/languages/langmin/euromsaic/et2_ en.html#11 http://www.helsinki.fi/~tasalmin/europe_index.html#biblio http://www.culture.gouv.fr/culture/dglf/lang-reg/rapport_cerquiglini/langues-france. html#ancre276758 http://ec.europa.eu/education/policies/lang/languages/langmin/euromosaic/index_en.html

chapter 3

Principles of policy evaluation and their application to multilingualism in the European Union François Grin

This policy analysis-based treatment of language choices in the European Union departs from usual approaches that stress educational, legal or political aspects, and attempts instead to develop an evaluative framework resting on the standard breakdowns of policy analysis, particularly the distinction between efficiency and fairness. The paper focuses on the narrower question of ensuring communication at reasonable cost in European institutions, and discusses the advantages and drawbacks of seven different models, or “language regimes”. It is shown that depending on the relative importance given to different criteria such as communicative speed, organisational simplicity, or inclusiveness, any of these models can be considered “best”. This general result points to the need to clarify policy goals, to beware of seemingly “obvious” solutions, and to develop language policies that combine different language regimes.

The European Union arguably represents one of the most eloquent examples of the need to develop novel solutions to the problem of communication between social actors with a large number of different mother tongues. Whereas the wellknown Regulation No 1 adopted in 1958 and in force to this day provides for the equal treatment of the official languages of all Member States, actual practice has departed from this principle of “full multilingualism” in a number of ways, even before the enlargement that took place in May 2004. Restricted language regimes (according to which only a subset of national languages are used) have been adopted in various aspects of the formal operations of the Union (Assemblée Nationale 2003; Gazzola 2005), and the day-to-day operations of the European Commission clearly favour English and, to a decreasing degree, French. German turns up as a very distant third.

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Beyond formal reassurances and ritual endorsements of plurilingualism, the choice of a language regime – or regimes – for the European Union is increasingly recognised as a highly sensitive issue. However, most of the contributions on this matter rest on legal considerations (with a reference to rights, sometimes more specific “language rights” or “linguistic human rights”), or on socio-political analyses that highlight notions of identity, nationality and citizenship. This paper attempts to address multilingualism in the institutions of the European Union (EU) in a way that deliberately departs from these standard approaches. Instead, it looks at the choice of language regimes as a public policy issue. This requires identifying and examining the allocative and distributive implications of different language regimes – or, putting it differently, to reason in terms of efficiency and fairness. I will try to establish the following two points: first, that language issues cannot be ignored and left to themselves, unless we are prepared to accept grossly inefficient and grievously unfair outcomes; second, that contrary to what is often claimed, there is no “obviously” superior solution, and that selecting a language policy for the European Union requires a much more systematic assessment of competing scenarios than what is often proposed. The paper is organised as follows. In the next section, I lay out the basic policy-analysis aspects of the problem. Following this, I present seven different “language regimes” and compare them in terms of resource allocation (or efficiency), while a separate section is devoted to the comparison between them in terms of resource distribution (or fairness). The main results are summarised in a brief conclusion.

The public policy perspective If choices are to be made regarding language policy options, the most fundamental instrument available remains policy analysis. Whereas it is commonplace to apply policy analysis tools to matters regarding transport, health, or the environment, its application to language policy is a more recent development (Pool 1991a, 1996). However, policy analysis is also useful in language policy because it can be located at a higher degree of generality than the approaches most frequently brought to bear on language policy issues (Grin 2000, 2003a). The latter tend to rely on three clusters of disciplines. The first cluster comprises applied linguistics and the education sciences, where contributions usually focus on (foreign) language teaching and language use in multilingual settings. Useful as such analyses may be, they emphasise the question “how” (namely, how to teach languages, how languages are learned, in what ways language learning processes may be related to other social processes, or how actors choose to use



Chapter 3.   Principles of policy evaluation and their application

one language or another), but this does not tell us what languages to learn, or for what reasons. The second cluster is anchored in legal perspectives. Again, these are necessary, but they usually take a number of parameters for granted – for example, certain standards embodied in international legal instruments. This approach leads to an examination of the compatibility of specific (e.g. national) legal provisions with those international instruments, a question rather removed from the fundamental one, namely, what language regime a particular society should choose, and for what reasons it should do so. To some extent, we could say that legal questions arise downstream from the policy analysis ones, since legal discourse serves to give a formal shape to the norms adopted as part of the selection and design of public policies. The third cluster sits astride the disciplines of international relations and political science. In so far as it incorporates the field of normative political theory, it is certainly closer to the core concerns of policy analysis. However, many contributions hailing from this cluster, rather than providing a general treatment of the issue, branch off into a discussion of the role of concepts like identity, nations or nationalism. There again, these are undoubtedly relevant ingredients in the examination, but they do not constitute the broad type of framework required to lay out social choices. Policy analysis includes two main questions, namely, resource allocation and resource distribution. When applying the former to language policy issues, the analyst tries to assess whether different language policy choices represent an efficient use of scarce resources. This requires assessing the net value (that is, “benefits” minus “costs”) of each policy option. It is important to note that both benefits and costs can be of the “market” and “non-market” kind (which therefore include symbolic benefits and costs), and need to be evaluated at the individual and social level.1 In general, the policy that generates the highest net value should be preferred to others. The examination of resource distribution – and redistribution following the implementation of a particular policy – aims at a systematic identification of the winners and losers, and of the amounts gained or lost by both groups. One particularly delicate point, of course, is the choice of criteria for establishing categories of people who may be winners or losers; in our context, people’s mother tongue is a key criterion.2 The question, then, is whether these gains and losses (which often take the form of undesired transfers from losers to winners) are seen as fair, or if they should be corrected by compensating transfers.3 Clearly, the type of examination proposed by a policy analysis framework can accommodate issues of identity, national sentiment and the like as investigated by contributions from “cluster 3”. Through the precise estimation of the effectiveness

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of different scenarios, it encompasses the language education and language use issues which “cluster 1” research usually emphasises; and its results can be used in the selection and design of policies that can subsequently be codified in legal discourse, using the apparatus provided by “cluster 2” (Grin 2003c). This is not to say, however, that policy analysis is enough to make appropriate public policy choices. Policy analysis is only an instrument for political debate and governance. It does not dictate solutions, but helps to expand citizens’ and decision-makers’ knowledge base, in order to allow for more informed choices.

Choosing official and working languages for the European Union The debate over the choice of official and working languages (hereafter: OWLs) in the European Union tends to side-step the policy analysis considerations outlined in the preceding section, and to rely instead on (in my view), incomplete characterisations of the problem in terms of the three “clusters” of disciplines mentioned above. The resulting shortcomings, which can also be observed in official EU literature (see, for example, European Commission 2003), and the attendant political questions this raises, have been discussed by numerous authors (see, for example, Ives 2004) and will not detain us here. Suffice it to say that issues of power are typically played down in the debate, and that a notable ambiguity appears to surround invocations of the principle of subsidiarity. In order to investigate language regimes, I start out from a model initially developed by Pool (1991b), which focuses on a limited range of “benefits” and “costs”. The variables considered are, for each regime, the number of OWLs, the nature of OWLs, the number of directions of translation and interpretation required, and the corresponding foreign language learning needs by EU officers, civil servants and Members of Parliament. Seven regimes are discussed in this paper, although additional regimes could certainly be identified. For example, “intercomprehension” (that is, banking on people’s receptive competence in languages structurally related to their mother tongue, for instance within the family of Romance or Germanic languages) considerably widens the range of possible language regimes. In this paper, we shall, however, confine ourselves to the six regimes investigated by Pool, plus a seventh regime introduced by Gazzola (2005). These seven regimes are summarised in Table 1, where the following assumptions have been made: 1) English is the only official language or the pivot language if the “monarchic” or “hegemonic” system is chosen;



Chapter 3.   Principles of policy evaluation and their application

2) this applies to Esperanto if the “synarchic” or “technocratic” regime is chosen; 3) if the “oligarchic” regime is chosen, a three-language troika is picked, comprising English, French and German; 4) in a regime of “triple symmetrical relay”, three languages are chosen as pivot languages, but no further assumption needs to be made regarding the languages concerned. Therefore, the seven regimes can be succinctly defined as follows: 1) the “monarchic” regime has only one official and working language, namely, English. This means that no translation or interpretation services are necessary, but that English must be learned as a foreign language by all non-Anglophones; 2) the “synarchic” regime has only one official and working language, in this case Esperanto (although Esperanto could be replaced by any language which is not native to the citizens of any Member State); there again, no translation or interpretation services are needed, but Esperanto must be learned by all; 3) in the “oligarchic” regime (or at least, in the version of this regime presented here, three languages (English, German and French) are treated as official and working languages; this keeps the number of directions of translation and interpretation that must be provided to six (that is, 3x(3–1)), but either English or German or French must be learned by persons whose mother tongue is other than any of these three; 4) the “panarchic” regime resembles current theoretical practice at the European Parliament: there are 23 official and working languages, which implies a staggering 506 (that is, 23x(23–1)) directions of translation and interpretation; however, there are in principle no foreign language learning needs; 5) in the “hegemonic” regime, all 23 languages are official; all written and oral communication gets translated (or interpreted) into the other 22 languages, but for 21 of them, translation and interpretation are indirect and take place via a “pivot” language, in this case English; the number of directions of translation and interpretation that must be guaranteed is therefore equal to 44 (that is, 2x(23–1)); however, no foreign language learning is necessary; 6) the “technocratic” regime is very similar to the hegemonic one, except that one official language such as Esperanto is added to the list of official and working languages, and it is used as the “pivot” language; therefore, 46 (that is, 2x(24–1)) directions of translation and interpretation must be covered, but there are no foreign language learning needs;

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7) finally, “triple symmetrical relay” also treats all 23 languages as official and working languages, and translation and interpretation take place through any of three pivot languages (instead of just one); it is simply assumed that for each of these languages, the amounts of translation and interpretation into and out of this language are equal; thus, the number of directions of translation and interpretation that must be guaranteed is equal to 126 (that is, 3(2x23–3–1)), but there again, no foreign language learning is needed. Table 1.  Seven language regimes4 Regime

Number of OWLs

Nature of OWLs

Translation and interpretation needs (directions)

Foreign language learning needs

Monarchic

1

English

0

English by all  non-Anglophones

Synarchic

1

Esperanto

0

Esperanto

6

English or German or French by others

Oligarchic

English, 1
Panarchic

23

All 23

n(n–1)=506

None

Hegemonic

23

All 23

2(n–1)=44, via English

None

Technocratic

24

All 23 + Esperanto

2n=46, via Esperanto

None

Triple symmetrical relay

23

All 23

r(2n–r–1)=126 where r=3

None

It is easily seen that, depending on the decision criteria adopted and on the relative importance given to each, any of these regimes may turn out to be the best; for example: •

a concern for the speed and accuracy of communication will lead us to avoid translation and interpretation (particularly if translation and interpretation may take place via a relay language); in this case, the monarchic or the synarchic regime will be preferred; • if there is a strong concern about the costs of foreign language learning (particularly if a high level of competence must be reached), the monarchic and oligarchic system will be avoided, and possibly the synarchic regime too, al-



Chapter 3.   Principles of policy evaluation and their application

though Esperanto is considered five to ten times cheaper to learn than the other languages featured in this table (Ministero della pubblica istruzione 1995); • if there is a concern that privileging any particular natural language will nurture a form of mental monoculturalism in European officialdom, the monarchic and hegemonic regime should be avoided, and the oligarchic regime, though slightly better, would be seen as an inadequate improvement on either. The comparative discussion between these different regimes could go into detail (see Pool 1991b, 1996; Grin 2004a), but the important point is simply the following: contrary to what many commentators claim with surprising self-confidence, there is no “obviously” superior solution to the problem of choosing OWLs for the European Union. Nevertheless, it is interesting to pause for a moment to address the issue of costs, since it is routinely singled out as a reason for abandoning the principle of full multilingualism in favour of another regime – most often, one that favours English or, sometimes, a subset of three languages like English, French and German. However, closer examination of the official figures reveals a different story (see Gazzola 2005, for a detailed discussion). We can estimate an average cost per direction of translation and interpretation by extrapolating from the total cost for translation and interpretation in 1999, which amounted to € 686m,5 of which approximately 60% was devoted to “panarchic” communication (mainly at the European Parliament), and approximately 40% to “oligarchic” communication. Since there were, at the time, eleven official languages in the EU, the number of directions of translation and interpretation actually covered is given by: 0.6 x [ 11 x (11–1) ] + 0.4 x [ 3 x (3–1) ] = 68.4 Dividing € 686m by 68.4 yields an average cost per direction of translation and interpretation of € 10.3m every year. Note that a figure per direction of translation and interpretation is a more precise indicator of communication costs than a figure “by language”, since adding languages to a regime entails a non-linear increase in total cost. Therefore, the cost per citizen and per year of regimes requiring some translation and interpretation (which leaves aside the monarchic and synarchic regimes) turns out to be quite modest (Grin 2004b). In a 25-member European Union, it ranges from € 0.13 for the oligarchic regime (less than one cent!) to €10.57 for the panarchic regime. Even this higher figure is likely to be well below Europeans’ willingness to pay for services that would ensure the continued recognition of their language

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(whether it be Italian, Spanish, Finnish or Polish) as a fully official and working language of the Union.6 In short, the real issue is not one of cost, even in the case of the more expensive panarchic regime. The real issue is one of feasibility and convenience, which certainly justifies looking for alternatives to the (supposedly official, but already abandoned in practice) panarchic regime.

Addressing linguistic justice Much of the academic or media discussion on European language issues makes no reference at all to the issue of linguistic justice; that is, the distributive implications of various scenarios often appear to be completely ignored. The notion of linguistic justice has been mentioned, in one form or another, by authors hailing from very different academic backgrounds (e.g. Gobard 1976; Breton and Mieszkowski 1977; Pool 1991a, 1991b; van Parijs 2001). Recent developments in the examination of linguistic justice show that granting a privileged status to natural languages gives its native speakers a considerable advantage. Five types of transfers can be identified. They hinge on the fact that native speakers of the dominant language enjoy a privileged position in certain markets, in particular for translation and interpretation into this language, for text editing in the language, for the teaching of it, and for the production of various educational materials; they are also spared the effort to translate messages into or from other languages, and hardly need to worry about learning foreign languages – which amounts to a considerable savings. All the resources thus saved can be invested in other pursuits, generating considerable knock-on effects. Conservative estimates for the European Union suggest that current uncompensated transfers in favour of the United Kingdom, resulting from the dominant position of English (even though the European Union nominally applies a panarchic system) are in the region of € 17bn per year (Grin 2005). Therefore, a concern for linguistic justice should rule out the monarchic and the oligarchic regimes, which give rise to undue transfers to native speakers of English (in the case of the monarchic regime) or English, French and German (in the case of the oligarchic regime). It will also argue against the hegemonic regime and “triple symmetrical relay” system, since they also, to one degree or another, give an edge to the native speakers of some languages. Therefore, if the (currently official) panarchic system is deemed too cumbersome, considerations of linguistic justice should lead the European Union to select the synarchic or the technocratic model.



Chapter 3.   Principles of policy evaluation and their application

Some commentators have, rather surprisingly, rejected these two regimes on the grounds that they are not actually fair. This argument (van Parijs 2004) is, however, easily dismissed. Its gist is that owing to the essentially Indo-European origins of its vocabulary, Esperanto is not really fair. However, since it remains demonstrably more accessible than any natural language, and given that its adoption would at a stroke eliminate billions of Euros of unfair transfers annually, rejecting it in favour of English is rather like claiming that feudalism is superior to social democracy on the grounds that social democracy can never totally equalise opportunities (Grin 2004b). The fact that Esperanto appears to be the most sensible option does not necessarily amount to a policy recommendation to make it the centrepiece of European language policy. In a more extensive discussion (Grin 2005), I have stressed the relevance, on balance, of a truly multilingual strategy (of which Esperanto can be one element). However, it is a useful reminder that if various options are subjected to a hard-nosed (and hopefully unprejudiced) policy evaluation, many apparent certainties begin to crumble, and other, sometimes neglected solutions emerge.

Conclusion In this paper, I have tried to establish the following three points: first, that Europe’s language choices must be approached with the tools of policy analysis; secondly, that in terms of resource allocation (or efficiency), there is no obviously superior solution, and that many different language regimes may turn out to be preferable, depending on the evaluation criteria chosen; thirdly, that in terms of resource distribution (or fairness), a concern for linguistic justice should lead us to move away from solutions that many people seem to endorse unquestioningly, and lead us instead to give serious consideration to often neglected alternatives, including those in which Esperanto plays a part. As pointed out above, the role of policy analysis is not to dictate solutions, but to provide tightly argued and solidly documented inputs to the political debate; and language issues remain, of course, highly political ones. Consequently, actual policy choices are likely to emerge from a combination of analytical results, idiosyncratic historical circumstances, and explicitly affirmed political and ethical values. However, our discussion suggests that if citizens are not indifferent to the linguistic environment in which they live and, therefore, may have a perfectly legitimate preference for a linguistically and culturally diverse Europe rather than a uniform one, a more lucid and detailed analysis of policy alternatives is necessary.

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Notes 1. This, in turn, raises conceptual difficulties that have not yet been solved in language policy evaluation or other disciplines (Grin 2003b). 2. Most policy analytical work emphasises socio-economic status as a criterion, although, depending on the type of policy considered, other criteria such as age, gender, health, ethnicity or – in our case – mother tongue are equally relevant. 3. A standard example of a “fair” transfer is that which flows from households without children to households with children, as a result of the financing of public education through tax revenue. 4. While the first six regimes are featured in Pool’s (1991) pioneering paper, the seventh regime (triple symmetrical relay) has been introduced by Gazzola (2005). 5. Written question E-2239, 19 January 2000, OJ C219 E/128–29, 1.8.2000. 6. The assumption that willingness to pay would be higher rests on a series of informal tests carried out with university students of (mainly) Italian mother tongue. To my knowledge, however, Europeans’ willingness to pay for their own national language to retain a full “OWL” status has never been the object of systematic estimation. Note that, according to the European Commission, the actual cost (before Romania and Bulgaria acceded to full membership) stood at € 2.14 per citizen and per year.

References Assemblée nationale (France). 2003. Rapport d’information déposé par la délégation de l’Assemblée nationale pour l’Union européenne sur la diversité linguistique dans l’Union européenne. Rapport Herbillon, www.elections-legislatives.fr/12/europe/rap-info/~i0902. asp. Breton, Albert & Peter Mieszkowski. 1977. “The Economics of Bilingualism”. The Political Economy of Fiscal Federalism ed. by Wallace Oates, 261–273. Lexington: Lexington Books. European Commission. 2003. Promoting Language Learning and Linguistic Diversity: An Action Plan 2004–2006. COM(2003) 449 FINAL. Brussels: European Commission. Gazzola, Michele. 2005. “La gestione del multilinguismo nell’Unione europea”. Le sfide della politica linguistica di oggi. Fra la valorizzazione del multilinguismo migratorio locale e le istanze del plurilinguismo europeo ed. by Augusto Carli, 17–117. Milano: Franco Angeli. Gobard, Henri. 1976. L’aliénation linguistique. Analyse tétraglossique. Paris: Flammarion. Grin, François. 2000. Evaluating Policy Measures for Minority Languages in Europe: Towards Effective, Cost-Effective and Democratic Implementation. ECMI Report No. 6. Flensburg: European Centre for Minority Issues. Grin, François. 2003a. “Diversity as Paradigm, Analytical Device, and Policy Goal”. Language Rights and Political Theory ed. by Will Kymlicka & Allan Patten, 169–188. Oxford: Oxford University Press. Grin, François. 2003b. “Economics and Language Planning”. Current Issues in Language Planning 4: 1.1–66.



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Grin, François. 2003c. Language Policy Evaluation and the European Charter for Regional or Minority Languages. London: Palgrave Macmillan. Grin, François. 2004a. “Coûts et justice linguistique dans l’élargissement de l’Union européen­ ne”. Panoramiques 69.97–104. Grin, François. 2004b. “L’anglais comme lingua franca: Questions de coût et d’équité. Commentaire sur l’article de Philippe van Parijs”. Économie publique 15.33–41. Grin, François. 2005. L’enseignement des langues étrangères comme politique publique. Rapport au Haut Conseil de l’évaluation de l’école. Paris: Ministère de l’éducation nationale. Ives, Peter. 2004. “Language, Representation, and Suprastate Democracy: Questions Facing the European Union”. Representation and Democratic Theory ed. by David Laycock, 23–47. Vancouver: University of British Columbia Press. Ministero della Pubblica Istruzione (Italy). 1995. “Étude de la Commission sur la langue internationale”. Bolletino ufficiale del Ministero della Pubblica Istruzione 21–22.7–43. Pool, Jonathan. 1991a. “The Official Language Problem”. American Political Science Review 85.495–514. Pool, Jonathan. 1991b. “The Official Languages of the European Communities”. Manuscript, Center for the Humanities, University of Washington (Seattle). Pool, Jonathan. 1996. “Optimal Language Regimes for the European Union”. International Journal of the Sociology of Language 121.159–179. Van Parijs, Philippe. 2001. “Linguistic Justice”. Politics, Philosophy & Economics 1.59–74. Van Parijs, Philippe. 2004. “Europe’s Linguistic Challenge”. Archives Européennes de Sociologie 45: 1.113–154.

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A one-dimensional diversity? European integration and the challenge  of language policy Peter A. Kraus

The article offers a critical assessment of the approach adopted by the European Union (EU) to dealing with linguistic diversity. On the one hand, the path to European integration has been marked from the beginning by an explicit commitment to protecting cultural and linguistic diversity. On the other hand, the credibility of this commitment suffers from the normative incoherence characterizing Europe’s actual institutional response to the challenges of multilingualism. To define rules which allow for a reflexive “processing” of diversity will not be possible without opening a proper political debate on the language issue in the context of European polity-building.

The language of diversity If we want to understand the importance of linguistic diversity in Europe, we only have to cast a quick glance at the continent’s political map. On this map, with only few exceptions, the name of a state stands generally for a country’s “own” particular language as well.1 What is more, the symbolic weight of Europe’s linguistic differentiation has quite significant functional and practical aspects. A person who plans to explore the Old World and to come to know its inhabitants by traveling from the North Cape down to Gibraltar, or from Donegal eastward to the Peloponnese, will need to be trained in a fairly broad repertoire of languages. It is true that in the bigger cities as well as in conversation with young people the world language English will serve the traveler as a convenient medium for communication. In addition, in some of the countries located in the core of the

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continent the knowledge of a regional lingua franca, such as French or German, will facilitate contact with the native population. In all likelihood, however, none of these languages will be of great use for him or her when it comes to exchanging impressions with an Arctic farmer in Lapland, a bus driver in Andalusia or a fisherman in the Danube delta. In these contexts, our traveler will either have to rely on a more extended linguistic repertoire or have to ask for the assistance of an interpreter. If we shifted the travel route from Europe to the Americas, things would look different. On the long trip taking us from the Bering Strait to Tierra del Fuego, we will get along well almost everywhere without having to use more than two languages – English and Spanish. To the extent that we were also fluent in Portuguese, our chances of being able to communicate in the New World would be all but maximized. This is not to say that the Americas have a linguistic universe offering less variety than Europe’s. In fact, the opposite is true: at present, linguists give a figure of approximately 225 spoken autochthonous languages for the Old Continent, while the corresponding number for North, Central and South America goes up to 1,000.2 Nevertheless, in Europe, political factors largely compensate for the smaller number of languages. The geography of European modernity has made for a high degree of overlap between linguistic and political borders. In the process of forging the institutionally embedded identities of European nation-states, the standardized vernaculars frequently played an emblematic role. Subsequently, and in response to this rationale, linguistic minority identities were a recurrent point of departure for establishing autonomy regimes within nationstates. In general, collective demands for the recognition of a specific linguistic group are accompanied by demands for the recognition of a specific sphere of social and political relations to be put under the control of the group. Modern Europe was formed as a space in which linguistic and political cultures were closely interwoven. Together with the processes of economic and bureaucratic rationalization closely scrutinized in the work of Max Weber, language standardization must be considered a characteristic element in the development of the European system of nation-states. In the making of modern Europe, the norm cuius regio, eius religio often found its “natural” continuation in the politics of cuius regio, eius lingua (Kraus 2000). Although both principles were the cause of bitter strife, the path followed by the larger West European states since the period of early absolutism was accompanied by intensive efforts to affirm political sovereignty by linking territorial integration and cultural homogenization. In the end, the dynamics of state formation did not produce uniform levels of linguistic standardization across all states, as we can see today. Nonetheless, the tendency to establish a monolingual frame of communication between public authorities and “their”



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respective peoples was a common feature of the dynamics of political modernization all over Europe. Probably the paradigmatic case of a state whose policies involved protracted and persistent efforts at achieving linguistic standardization is France. These efforts were intensified during the last decades of the 19th century, when the French state used conscription and schooling as its main tools for creating a public space defined by a uniform cultural identity. To this day, the French Republic remains unwilling to assert its unity on the basis of acknowledging the plurality of languages and cultures within the citizenry. Although France may seem an extreme case, it can hardly be classified as a unique exception: the relationship between political unity and cultural diversity has been tense in most European nation-states. With regard to the role of language in political integration, the making of the European Union (EU) has evidently involved a clear break with the dominant versions of the modern European state tradition. In its constitutional discourse,3 the EU has repeatedly stressed its normative commitment to protecting cultural diversity. After centuries of nationalist conflict, in which the contending parties tended to articulate their goals in the name of mutually exclusive cultural and linguistic identities, the project of European integration is meant to represent a novel approach to political unity. One of its main features would be precisely to refrain from all attempts at creating a culturally and linguistically homogeneous space, since such was characteristic of the European nation-state. Well before multiculturalism and the politics of difference became much debated topics among the public in western democracies, pioneers of European integration, such as the German Walter Hallstein who was appointed the first President of the European Commission, had assigned diversity a pivotal normative role in their day-to-day political work. For Hallstein and his companions on the road to integration, the building of Europe had to be clearly dissociated from any homogenizing pretensions. The objective was rather to insulate the cultural realm against the spillover effects of market integration (Kraus 2004: 303–305). From this angle, the European project was not concerned with setting common standards in the domains of language and culture. Rather, the preferred approach was to build common economic and political institutions without leveling out the cultural differences embodied in the identities of the nation-states participating in the process of Europeanization. In the five decades that have gone by since the signing of the Treaty of Rome and the establishment of the European Economic Community, the normative value attached to diversity in the framework of unification has steadily increased. In a nutshell, the official discourse of integration holds that the goal of strengthening the political bonds among Europeans is based on a set of common values, which ultimately include diversity. At any rate, respect for cultural diversity seems to carry a normative weight similar to that assigned

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to values such as human dignity, freedom and equality.4 Against this background, it is not surprising that the European Union’s official motto, as laid down in the constitutional treaty, reads: “United in diversity”. As cultural diversity in contemporary Europe means, first and foremost, language diversity, the management of multilingualism has great relevance in demonstrating the Union’s normative credibility when it comes to embracing a politics of mutual recognition. Since the Treaty of Rome (which contained only a cursory reference to the language issue, declaring it a matter subject to further regulation by the Council) and the corresponding Regulation of 1958 (in which the Council defined the basic features of Europe’s language regime), European language policy has been based on an intergovernmental consensus5 whose central element is the obligation to respect the equality of the languages of all member states at the level of European institutions. In principle, there are no criteria for distinguishing between working languages and official languages within Community organs.6 In the successive enlargements of the Union, the entry of new member states did not imply any alteration in the formal equality of state languages: the more members, the more official EU languages. Thus, at present, after the first two rounds of Eastern enlargement and the admission of ten new members in 2004 and the entry of two additional members in 2007, 27 member states make for 23 languages which are all formally equal within the Union. Because of its official language regime, the EU has been characterized as an institutional domain governed by an “integral” multilingualism (Haarmann 1991). There is a second and more recent development regarding the regulation of linguistic diversity in Europe that also deserves to be mentioned. The making of a European human rights regime in the last two decades has largely coincided with growing transnational protection of linguistic and national minorities. The defense and promotion of human rights is one of the principal tasks of the Council of Europe, whose initiatives in this domain have always had the active support of the European Union and its institutions. Coordinated human rights policies attained major significance when the East European states began to join the Council after 1989. A considerable part of the Council’s activities in the decade of the 1990s was devoted to defining a set of common European standards for the protection of minorities.7 All in all, these activities created tight legal links between human rights and the recognition of cultural and linguistic diversity. The Convention for the Protection of National Minorities (1995) and the European Charter of Regional or Minority Languages (1992) constituted the main outcome of the institutional efforts at defining a common basis of cultural rights to be granted all over Europe. If we leave aside the regulation of language-related issues within EU organs, the Charter of Regional or Minority Languages may be the most important reflection



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of the efforts undertaken in recent times to generate transnational norms for dealing with linguistic diversity in Europe. After emphasizing the principles of democracy and cultural diversity within the framework of the national sovereignty and territorial integrity of the states represented in the Council of Europe, the Preamble to the Charter states that the protection of minority languages should not be detrimental to the official languages of these states. In Part I of the Charter (Articles 1 through 6), regional or minority languages are defined as those languages which are “traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population.” The languages of immigrant groups are not considered. Nor does the Charter explicitly mention the languages to be covered by the definition. Although the document includes a catalogue listing the specific obligations its signatory states are expected to meet, the would-be recipients of language rights have no means of lodging a formal complaint against a state which fails to apply the catalogue. The controlling functions are assigned to an expert committee. Hence, the Charter remains a highly flexible instrument, regardless of the fact that its provisions are legally binding. Nevertheless, it does express a minimum consensus on how to modify former nation-state prerogatives vis-à-vis linguistic minorities in Europe. It must be emphasized that EU institutions have been prominently involved in the process of reaching this consensus. The Charter seems to be far more ambitious than earlier established international law arrangements in Europe, whose intent was largely to avoid minority conflicts in a traditional legal sense, namely as conflicts involving different states. It rather constitutes a first major approach to setting common European standards for the management of linguistic diversity in a fashion that is in tune with the contemporary view of human rights. When we get back to the realm proper to EU institutions, however, we must also realize that the commitment to protect cultural and linguistic diversity is not necessarily always motivated by a generalized normative high-mindedness. It may also be interpreted as the consequence of a constellation in which, to a certain extent, the reciprocal recognition of the value of difference obeys tactical criteria. In this constellation, the member states reassure themselves that their particular identities will continue occupying a key position in the Union’s political architecture. Against this background, the official celebration of linguistic diversity would have to be understood primarily as a concession to the importance of the tradition of the national language in Europe – a tradition in which national language ultimately is synonymous with language of a nation-state. Hence, the precarious foundations of a shared trans-European political culture were fortified by guaranteeing all state languages an equal level of “officiality”. The intention of

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the political elites who defined the basic features of the European language regime was to avoid nationalist setbacks on a symbolically loaded ground. The process of constructing a common institutional frame was not to be jeopardized by starting a political debate on the language issue (Coulmas 1991). In spite of these qualifications, we may still maintain that Europe’s language is the language of diversity. The characterization applies in a double sense: on the one hand, our looking at the map has shown that the attribute diverse provides a quite appropriate description of the sociolinguistic situation on our continent; on the other hand, diversity has become a pivotal concept in the normative metalanguage that we use as Europeans in addressing one another. Thus, in the archipelago of European identities, diversity may be considered the waterway uniting what it separates. Embracing diversity in this twofold sense seems to have a very concrete meaning for the EU. At any rate, it sets the foundations of a system of integral multilingualism, in which all the official languages of the member states become official languages of the Union too. By establishing a political domain with a historically unprecedented institutional openness toward linguistic diversity, the EU puts itself in stark contrast with international regimes of a more conventional type, such as the United Nations or the Council of Europe. The translation machinery concentrated in Brussels is an obvious manifestation of the efforts the Union makes in order to tackle the language issue. The relentlessly growing body of European regulations must be equally accessible to all EU citizens in the languages of all the member states. As noted before, 27 states currently make for 23 European languages sharing equal official status, irrespective of criteria such as the demographic weight or the levels of transnational knowledge of a language. Administrative work in the EU means, in the first place, linguistic work.8 Observed from this angle, the uniting of Europe comes close to a historically groundbreaking enterprise, which aims at transcending difference by recognizing it. Diversity would be the normative lubricant of this enterprise.

Market integration versus diversity Are the dynamics of transnational integration, then, turning Europe into an empire of diversity? This would be an excessively naïve view. The main rationale for the project of Europeanization was certainly not directed at creating a neo-Babylonian El Dorado of languages and cultures. Since the Treaty of Rome, to speak of a united Europe implied primarily the vision of a common economic space; European integration and market integration were all but interchangeable concepts. In the meantime, after the transition to the Economic and Monetary Union, the former vision of an integrated market has largely become a reality.



Chapter 4.  A one-dimensional diversity?

As an integrated market, Europe is built upon four pillars: free movement of goods, free movement of services, free movement of capital, and, finally, free movement of persons. The four freedoms are aimed to guarantee that the continuing existence of borders between member states does not obstruct economic activities within the Common Market. However, these activities cannot be realized without relying on the medium of language. Multilingualism in a common economic space thus obviously causes transaction costs of a kind that would not exist in a linguistically homogeneous setting. Moreover, it implies additional demands for legal regulation: Must an Irish mechanic who wants to establish a car repair shop in Germany be expected to be fluent in German? In which languages is the label information on Italian food products destined for export to EU countries to be given? To what extent should services delivered in the media sector – which can generally be conceived of as cultural services – be exempt from the pressure not to interfere with the four market freedoms? The dynamics of market integration may well entail challenges to the imperative to respect cultural and, more specifically, linguistic diversity. When conflicts of this kind arise, the European Court of Justice is assigned the role of arbiter, deciding in each particular case whether the protection of linguistic pluralism will trump the implementation of the four market freedoms.9 In reality, the problems are even more complex. The process of market integration speaks its own meta-language, too. It is a meta-language which ousts the language of diversity in silent but effective ways; it is the language of economies of scale and of standardization. In our roles as economic citizens and consumers we are not averse to the message it transmits. Thus, for example, the free circulation of goods provides German supermarkets day by day with a broad range of European products of all imaginable kinds and origins; only a few decades ago, familiarity with such merchandise – think of San Daniele ham, Swedish chocolate or Chupa Chups – was limited to relatively small insider groups. From Finland to Portugal, the Europeans of today enjoy the manifold advantages of a supply of goods that has been successively expanding. At the same time, the choice of products stocked by European supermarkets to attract customers is becoming more and more interchangeable from place to place. What we can buy in Belgium we will generally find in Denmark as well – even more so if we visit a branch of the same company. Depending on our financial means, we make our choices from a range of goods that has become more ample and colorful; by doing so, we may ultimately be growing more and more alike in our consumer habits. In the making of a common European economic space we will discern the same patterns which characterize processes of economic integration in general. To varying degrees, market integration is always associated with standardization. Hence, we cannot preclude the possibility that the spread of “the” language of the

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Common Market across Europe has effects which are comparable to those dissected, on a smaller scale, in the Italy of the 1960s and 1970s by Pier Paolo Pasolini, an artist and cultural critic whose eloquence matched his taste for polemics. Pasolini (1975) reacted to the changes that had taken place in Italian society with a cry of outrage. In his view, the postwar economic boom had paved the way for a triumph of consumerism in his country, leading ultimately to a kind of anthropological mutation and a veritable leveling out of cultural difference. According to his gloomily radical assessment, the force of a mass culture devoted essentially to structuring consumer life was creating a streamlined universe where particular, non-standardized linguistic, regional and social identities were bound to disappear. Such identities had no chance of resisting the uniform impact of market integration. Many of the concerns articulated by the cultural wing of the contemporary anti-globalization movement are anticipated succinctly in the harsh diagnosis the Italian intellectual put forward some thirty years ago. Even if one does not agree with all aspects of the cultural pessimism articulated by Pasolini, one can still concede that the language of the market does not necessarily enter the scene as the harmonious counterpart of the language of diversity. Processes of market integration in an unbounded economy have homogenizing consequences. Their “sense of diversity” becomes little more than the perspective transmitted by United Colors of Benetton ads. Let us keep in mind, therefore, that the route leading to the EU began with the establishment of the European Economic Community. To this day, the Common Market may count as one of the chief manifestations of the view that Europeans have of themselves as Europeans. Thus, unsurprisingly, the identity of the citizens of the European Union largely coincides with the identity of market participants and consumers. It took little time for the Euro to become a salient symbol of belonging to Europe, or at any rate to the thirteen member states currently making up the Euro zone. The awkward way diversity was dealt with when the Euro banknotes were designed may offer a good illustration of how the new medium of monetary exchange relates to the more traditional patterns of cultural identity in Europe. Typically, all over the world, banknotes of national currencies show us images which in different ways are supposed to embody characteristic elements of a shared repertoire of cultural knowledge. Such images may show historic buildings, celebrities from the domains of politics, arts, sciences and sports, or natural scenery closely associated with a specific country. It is striking how the Euro notes operate with quite a different collective imagery. On the one hand, the European Commission intended to attach a strong symbolic meaning to them, as they were expected to express the common bonds of European citizens. On the other hand, it was impossible to use signifiers that corresponded to a particular historical, geographic or cultural background, as they could have brought about



Chapter 4.  A one-dimensional diversity?

an outbreak of national rivalries (Shore 2000: 112–115). Ultimately, the situation led to opting for a collection of motifs on which we will find neither human beings nor landscapes nor monuments that have ever existed. Instead, what we see, together with the map of Europe and the flag of the EU shown on all notes, are architectonic figures, such as arches, bridges and façades, represented in an abstract, stylized fashion. They supposedly point to various periods in the history of European architecture, but they do not correspond to buildings we could ever identify. By contrast, one side of the Euro coins displays national motifs chosen by the member states. However, the Euro notes offer no evidence of a specifiable collective identity. They visualize a space that remains strangely devoid of people and has been detached from the realms of a tangible collective cultural experience: Euroland, originally envisaged as a symbolic home to European citizens, thus becomes a no-man’s-land. The “language” of the Euro is dominated by the “pure” signification the currency has as an economic means of payment. Apparently, the Europe institutionalized by the Monetary Union did not want or was not able to elaborate a more filigreed cultural semantics. In the political discourse of integration, Europe is equated with diversity. But what kind of diversity are we talking about, anyway? The diversity of a space combining the disappearance of borders with a loss of meaning?

Europe and language policy: From diversity to uniformity Under democratic conditions, one of the foremost tasks of politics is to try to correct market outcomes considered socially unbearable. If we apply this logic to the context of the EU, European institutions must make sure that the language of diversity is not subsumed under the language of the market. Language policy, then, would be the genuine vehicle giving a voice to the language of diversity in Europe’s emerging transnational space. How is the EU tackling the language question in the political realm? Against the background of the impasse in Europe’s constitutional process, the growing importance of the issue becomes even more manifest. If the Union involves constituting an overarching political identity, we should also discuss how this identity is to be interwoven with the language of diversity. In very broad terms, the language issue in the EU has two major dimensions, largely coinciding with the sphere of internal communication on the one hand, and the sphere of external communication on the other. Regarding the first sphere – the management of linguistic diversity within European institutions – Europe’s “linguistic constitution” is based on principles of integral multilingualism, as we have already noted: the Union assigns all state languages an equal status

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as European official languages, without establishing any formal distinction between official and working languages. By imposing on itself the obligation to ensure an extensive consideration of the multilingual factor within its institutions, the EU highlights its will to respect cultural diversity. Yet, in the Union’s institutional framework this diversity is primarily embodied by states. This is not to say that the EU is utterly unresponsive in taking into account the claims of language groups lacking a proper representation by a state, such as regional minorities or collectivities of migrants. Nevertheless, their cases play a clearly subordinate role in the approach the Union has adopted toward “identity politics”. Thus, the recognition of diversity is ultimately synonymous with the recognition of the identities of states. After all, one of the main reasons for granting all state languages the same official status is to avoid making the language issue a matter of controversies between nation-states. However, the official creed of a pronounced multilingualism does not correspond to the de facto day-by-day practices observable in European institutions. As far as these institutions’ internal communication is concerned, English and French are unquestionably the prevailing working languages. In recent years, it seems that the weight of English has been continuously increasing at the expense of French. Eastern enlargement has intensified this trend. German is only rarely used as a working language in the EU’s administrative organs.10 In the de facto communication routines within European institutions, the status equality established de jure among all working languages thus turns out to be a fiction. Living with such a fiction may well be unavoidable: ultimately, the efficiency of the work of European institutions must be guaranteed, without a permanent full-scale involvement of the translation and interpretation services. Nonetheless, it is problematic that the distinction between de facto and de jure models of multilingualism is allowed to occur without reliance on explicitly stated political criteria. To the extent that no attempt is made to formulate rules delineating a constructive institutional response to the challenges of multilingualism, the official discourse on diversity loses credibility. Moreover, given that the substitution of integral multilingualism by a language regime which is in reality highly selective is happening in a normative grey area, a latent conflict potential is built into the structures of internal communication in EU institutions.11 The language of diversity must pay normative tribute to the significance of cultural difference in processes of intercultural communication. To do so does not require what in political theory has been called a mirror representation of diversity (Goodin 2004). But it does require politics. Unfortunately, when it comes to the institutional regulation of its internal language regime (or rather regimes, as the regulations vary with the institutional level they address), the Union seems to be highly afraid of entering the realm of politics. Yet both for substantial normative



Chapter 4.  A one-dimensional diversity?

reasons and also for practical considerations, a serious debate on the EU’s internal language policy is more than overdue. To grant English, French and German official status as working languages might be a good basis for finding a compromise.12 Proceeding in such a way would not imply altering the status of all member state languages as official EU languages. A decisive step for justifying the selection proposed here is to highlight that it does not aim at privileging a particular set of national languages; its rationale rather follows opposite criteria by acknowledging the role the three languages have as major trans-European vehicular languages, which, in addition, are official in more than one member state. Finally, it can be argued that a trilingual regime within institutions offers a basis solid enough for sustaining an administrative culture that honors diversity. What is to be said regarding the sphere of external communication? At stake here is the communicative underpinning of EU politics and policies. This takes us directly to the question of the communicative foundations of a transnational civil society in Europe. In this area, the EU’s proclivity to avoid any politicization of the language issue becomes even more patent than in the context of internal communication. The political regulation of diversity by means of language policies seems to be an explosive topic, which many integration strategists prefer not to bring up. It is symptomatic that no significant efforts were made to tackle the challenge of defining a language policy for Europe during the constitutional process. When it comes to the language issue, the basic response we find in the constitutional text is a big silence. Instead of working out a political grammar for the language of diversity, the EU has opted for appeasing the European public with a recurrent and almost ritualistic pledge that underlines the importance of linguistic diversity for the process of political integration. In general, the message remains rather abstract and does not imply much more than a declaration of good will. To the extent that European institutions do start any initiatives in the field of language policy, as was the case with the Lingua Programme, they reproduce the commitment to integral multilingualism and aim at promoting all official languages; thus, diversity is basically framed as an additive diversity of state languages. At the same time, the actors involved know full well the development that is in fact taking place on the European “language market”: the European version of global English has attained an unquestionable monopolistic position, which none of the other “great” European languages – neither French nor, a fortiori, German – can challenge any longer. Virtually everywhere on the continent today, European English carries a much higher communicative potential than any other foreign language (de Swaan 2001). It must be noted, however, that this situation is not the outcome of a process of collective political will-formation in the transnational space; nor does it really express the Europeans’ wish for having a language which serves as the ve-

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hicle for their communicating in diversity. Essentially, the triumph of European English is just one more aspect of the success story of English as the global lingua franca of our times (Crystal 1997). This story is based on myriads of instrumental calculations leading individuals all over the world to learn the English language in order to attain higher levels of professional mobility, to be able to realize financial transactions on global markets, to get direct access to a broad range of areas of specialized knowledge or, simply, to have at their disposal a very useful medium of communication when traveling abroad. There is obviously no point in criticizing such motivation for acquiring a foreign language. Denying that reasons of this kind are good reasons would be absurd. Still, their value for coming to grips with the problem of diversity and language policy in Europe remains limited. In more than one respect, the hegemonic position of European English reflects the results of a process which applies the logic of market integration to the communicative integration of Europe. This means that Europe refrains from tackling the language issue by political means. That there is no active institutional intervention in the “language market” has consequences which are eminently political. The communication problems discernible at the level of European civil society, for example, are clearly related to the distribution of linguistic competences. In both a geographical and a social sense, knowledge of English is unevenly distributed across Europe. As a foreign language, English is more widely known in Northern and Central Europe than in other regions of the continent. Besides, all over Europe its speakers are typically concentrated within the upper strata of the population.13 Such evidence begs substantial questions, which bear on the framework of political communication in transnational spaces and on the cognitive dimensions of citizenship status. So far, they have received only limited attention in the debate on the perspectives of transnational democracy.14 In view of the negative implications which arise if the regulation of the language issue is left to the market, the communicative dynamics of Europe’s emerging civil society should not be based exclusively upon European English. A crucial point in the argument of the present paper is the assertion that the realm of political culture should be protected from the homogenizing instrumentalism of market integration. The project of integration will ultimately lose a good deal of its normative appeal if it is unable to formulate an innovative political approach allowing the legitimate articulation of difference in a multinational community of Europeans. To the extent that the language question continues to be depoliticized, the discourse of diversity in the EU will only celebrate a permissive diversity, in which many things can be represented as long as they have little meaning. Recognition thus becomes a merely symbolic act; it does not even require a special effort



Chapter 4.  A one-dimensional diversity?

at perception. A normatively demanding recognition of the other, by contrast, would require us to adopt an empathetic perspective in order to find our way toward a mutual understanding that rarely comes up automatically. In the long run, trying to circumvent the hard decisions leading to an active and unambiguous language policy means undermining diversity. As facile lip-service lacking proper political supports, such a commitment to diversity paves the way to uniformity. Without language policy, Europe’s diversity will ultimately become speechless.

Diversity and the challenge of politics When European politicians look for models which might offer some concrete evidence about what “integration in diversity” comes to mean in practical terms, their interest is often captured by the case of the United States. Accordingly, the Federalist Papers have become an important source of inspiration for constitutional discourse in the EU.15 The making of the US federation is certainly a fascinating example of a highly complex process of political unification, and studying this example can give us stimulating insights into the dynamics of political integration in democratic settings. Nonetheless, if the aim is to get to an appropriate understanding of the challenges posed by diversity in the context of the EU, it seems misleading to interpret the European situation against the background of the United States. Seeking inspiration in the USA might ultimately mean diluting diversity in the “market model” of citizenship. If we wish to develop a sound approach to analyzing the EU’s prospects as a diverse political community, we should perhaps rather bring into focus the experiences of a democratic federation whose politics are substantially characterized by the intertwining of multiculturalism and the multinational factor. The comparative frame for assessing Europe’s political future would thus be moved only slightly to the north, from the USA to Canada. With its commitment to finding a path to political unity in which cultural diversity is not leveled out, but recognized and protected, the EU has been carrying innovative normative claims into a terrain formerly dominated by the imperatives of a realpolitik reflecting the interests of rival states. Given the absolutely central role which a politics of reciprocal recognition is bound to play in an institutional setting in which difference and cultural pluralism carry great weight, the structures supporting a European civic community can hardly be conceived of without taking into account the impact of diversity on the formation of a common public space. Seen from such an angle, then, European identity and Union citizenship will have to rely upon a “deep” understanding of diversity, if they are to become concepts with a meaningful and innovative content. The philosopher

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Charles Taylor (1994: 83) has put forward the concept of “deep diversity” in the political context of the Canadian federation in order to postulate a way of regulating the plurality of collective attachments which goes beyond the institutional recognition of diversity already at work in his country. From his point of view, diversity is to be considered as “deep” to the extent that the plurality of patterns of cultural identity is made compatible with different forms of political integration in the federation. Membership in the Canadian federation potentially does not have the same meaning for a Canadian of Chinese origin in Vancouver as it has for a citizen of Montreal or for an Inuit. The concept of deep diversity is meant to explore the possibilities of creating a common context of political identification whose particular feature is its acceptance of the legitimacy of varying degrees of identification with the overarching community it represents. The concept of deep diversity may provide us with some helpful orientations for working out a well-founded normative response to the challenges of integration in contemporary Europe. In Taylor’s terms, a European identity built on deep diversity would have to be perceived as a shared attachment – as expressed by Union citizenship – to an emerging transnational polity. At the same time, in a diverse polity this shared attachment would be based on the respect of difference and on intercultural empathy. Europe’s political identity would thus primarily hinge on the respect of difference and on the will to tolerate and to include the “other” (Habermas 1998). In practical terms, regarding the process of institutionalizing the Union, deep diversity would at the same time translate into a general agreement on defining common political goals without having to reach “substantial” prior consensus on the “final” institutional form of a European polity. Seen in this light, the concept may serve as a useful political guideline on the agenda of differentiated integration, which, in all likelihood, will become a central issue in the enlarged EU. In a framework marked by differentiated integration, much effort will have to be applied to addressing the requirements deriving from a complex and open process of political institutionalization, without stirring up resentments in disputes over the question of whose say counts “more” or “less” in the intergovernmental arena. If Union citizenship fails to produce common bonds which give generalized support to an institutional setting of this kind, Europe will hardly be able to overcome political deadlock in the future. Finally, by bringing the Canadian “model” into focus, we may also learn to recognize the inherent moment of tension which the democratic articulation of cultural diversity typically entails. A European public sphere based on deep diversity should not be confused with a pseudo-idyllic multicultural haven. Rather, it should be seen as a breeding-ground for an intercultural empathy which will be strongly needed if identity conflicts in the EU are to be contained through institutional politics.



Chapter 4.  A one-dimensional diversity?

After closer scrutiny, the initial image of a political community of Europeans united by diversity and in diversity has darkened considerably. As long as it remains an abstract principle, diversity is doomed to be displaced by the functional imperatives of market integration and the pressures for achieving communicative efficiency. The order of the day, therefore, is to give the language of diversity a concrete meaning. This will definitely require moving along the path of politics. To adopt an approach of deep diversity for tackling Europe’s language problem is not to embrace the banner of romanticism; nor does it imply resuscitating the concerns of an old-fashioned cultural pessimism. In the realm of politics, attitudes of this kind will not take us very far, anyway. A politics which aims at keeping the language of diversity alive will start with the premise that a “naïve”, one-dimensional diversity is not a cause worth struggling for. Hence, it will rather try to develop the perspective of a “complex” diversity (to put it in somewhat oxymoronic and pleonastic terms). In dealing with the language issue, a view that understands diversity as a simple addition of different elements leads to an impasse. Europe’s objective should be to become a laboratory for learning an intercultural competence which can be politically effective. To get there, we need rules which allow for a reflexive “processing” of diversity. This does not require that we construct a mirror replica of diversity. It is true that Europe’s language, as a diverse language, will always have to be more than one language. If it is not to pave the way for uniformity, however, Europe must abandon the all-too-easy litany which keeps on adding member state language to member state language and gives us a picture of (currently) 23 plus (prospectively) x equally official EU languages. If we are prepared to take deep diversity seriously, the external dimension of the language issue in the EU, which is closely related to the question of the communicative structures of a European civil society, should be confronted from the perspective of a converging multilingualism. Such a perspective includes European English without assuming that that language indicates the only viable solution for organizing the flows of trans-European communication. The option of a converging multilingualism, to be graded depending on levels of communication and institutional functions, would aim at promoting multilingualism in ways that take into account language diversity after balancing communicative requirements and socio-cultural context. Thus, the framework of public communication in Europe could be split up according to the criteria of functional and territorial subsidiarity; regional vehicular languages could be used in addition to English; and, finally, minority languages could be assigned a more prominent role. The main goal of the option of converging multilingualism is to formulate a genuinely political answer to the challenges Europe has to meet in the realms of linguistic regulation. EU politics, then, faces the task of “translating” diversity – of bringing first-order diversity into forms that do not simply reproduce it but transform it

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reflexively. For Wilhelm von Humboldt (1963 [1830]: 434) learning a new language was equal to acquiring a new standpoint for viewing the world. A transnational European polity which shares in such an understanding of language must show its openness to the existence of different standpoints of this kind. A Europe constituted as a multilingual community will make for an overlapping of public spheres and enhance the connectivity of discourses referring to a variegated set of identities and interests. The relevance of “translations”, both in a literal and in a metaphorical sense, for establishing these connections and overlaps is evident. In the end, this brings us to a more concrete vision of what unity in diversity might mean in the context of the European Union, namely a constant attempt at basing transnational will-formation on communicative structures which offer leeway for the articulation of cultural and linguistic difference. In other words, even if we, as European citizens, may well have to communicate with each other in only one language, we should speak this language in a way that always refers to other languages too, thereby making these other languages audible and keeping them alive.

Notes 1. Great Britain, Switzerland, Austria and Belgium have a linguistically “neutral” official denomination. One may speculate about the extent to which this neutrality correlates with deviations from the “standard” patterns of nation-building in Europe (cf. Rokkan 1999). In the cases of Austria (in the period after World War I) and Belgium it seems obvious that such a deviation entailed specific problems regarding the dynamics of political integration. 2. See the updated information offered by Leclerc (2005). 3. By “constitutional discourse”, I mean not only the contents of the ill-fated European Constitution. As I use it here, the term also refers to the principal treaties and other documents containing the normative guidelines of integration, such as the Treaty of Rome, the Treaty on the European Union, and the Charter of Fundamental Rights of the European Union. 4. Cf. the Preamble of the Charter of Fundamental Rights of the European Union, proclaimed in 2000. The Charter was later incorporated into the Treaty establishing a Constitution for Europe. 5. For a systematic overview of the normative body regulating language matters during the first four decades of integration, see Labrie (1993). 6. Although English, French and, to a much more limited extent, German, do enjoy, as we will see, a privileged de facto position as standard working languages. For a general analysis of the normative ambiguities and contradictions inherent to the EU’s language policy, see Kraus 2008. 7. See the overview in Aarnio (1995).



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8. This linguistic work, since the first round of Eastern enlargement in 2004, is apparently pushing the institutional capacities of the EU to their very limits. See the BBC News feature from May 2004: EU tackles translation ‘crisis’ [http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/3751079.stm]. 9. For assessments of the position adopted by the Court in its dealing with language matters see De Witte (1991, 1993) and Usher (1998). 10. Discussions of the implications of multilingualism within European institutions as well as critical assessments of the developments regarding the use of working languages can be found in Ammon (2004), Bueno (1999), Schloßmacher (1994) and Wright (2000). 11. In fact, in the recent past, the question of the working languages to be used within the institutions of the EU has led to regular disputes between member states and EU organs. Consider, for example, the complaints of Italy and Spain because of what they perceive as a relegation of their state languages to a “second class” status within the EU’s language regime: see the article “Italians and Spanish object to ‘second division’ language status”, Euractiv, 17 October 2005 [http://www.euractiv.com/Article?tcmuri=tcm:29-136115-16&type=News]. 12. Indeed, this seems to be the approach favored by the Commission nowadays, but, again, measures pointing in this direction have been adopted without offering clear-cut political arguments; see the article “Bruselas ratifica la equiparación del idioma español al maltés y al eslovaco”, El País, 19 January 2006. 13. See the figures listed in the special Eurobarometer report on language (European Commission 2001a) and in Eurobarometer 55 (European Commission 2001b). 14. A noteworthy exception is Tully (2005). 15. To mention only one prominent example: In the discussions related to the speech he gave in 2000 at Humboldt University, explaining his view of Europe’s constitutional future, the German foreign minister Joschka Fischer declared himself to be an avid reader of the Federalist Papers. For the speech, see Fischer (2000).

References Aarnio, Eero J. 1995. “Minority Rights in the Council of Europe: Current Developments”. Universal Minority Rights ed. by Alan Phillips & Allan Rosas, 123–133. Turku: Åbo Akademis tryckeri. Ammon, Ulrich. 2004. “Sprachenpolitik in Europa – Unter dem vorrangigen Aspekt von Deutsch als Fremdsprache (II)”. Deutsch als Fremdsprache 1: 3–9. Bueno, Jesús. 1999. Babilonia y Babel: El Parlamento Europeo desde dentro. Barcelona: Ediciones B. Coulmas, Florian. 1991. “European Integration and the Idea of the National Language. Ideological Roots and Economic Consequences”. A Language Policy for the European Community. Prospects and Quandaries ed. by Florian Coulmas, 1–43. Berlin: Mouton de Gruyter. Crystal, David. 1997. English as a Global Language. Cambridge: Cambridge University Press.

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De Witte, Bruno. 1991. “The Impact of European Community Rules on Linguistic Policies of the Member States”. A Language Policy for the European Community. Prospects and Quandaries ed. by Florian Coulmas, 163–177. Berlin: Mouton de Gruyter. De Witte, Bruno. 1993. “Cultural Legitimation: Back to the Language Question”. European Identity and the Search for Legitimacy ed. by Soledad García, 154–171. London: Pinter. European Commission. 2001a. Europeans and Languages (Eurobarometer 54 Special). Brussels: Education and Culture Directorate-General Unit “Centre for the citizen – Analysis of public opinion”. European Commission. 2001b. Eurobarometer. Report Number 55. Brussels: European Commission Directorate-General Press and Communication. Fischer, Joschka. 2000. “Vom Staatenverbund zur Föderation: Gedanken über die Finalität der Europäischen Integration (Rede in der Humboldt-Universität in Berlin am 12. Mai 2000)”. What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer ed. by Christian Joerges, Yves Mény & J.H.H. Weiler, 5–17. Florence: Robert Schuman Centre for Advanced Studies & European University Institute. Goodin, Robert E. 2004. “Representing Diversity”. British Journal of Political Science 34:  453–468. Haarmann, Harald. 1991. “Monolingualism Versus Selective Multilingualism – On the Future Alternatives for Europe as It Integrates in the 1990s”. Sociolinguistica 5: 7–23. Habermas, Jürgen. 1998. The Inclusion of the Other. Studies in Political Theory. Cambridge, Mass.: MIT Press. Humboldt, Wilhelm von. 1963 [1830–1835]. “Ueber die Verschiedenheit des menschlichen Sprachbaues und ihren Einfluss auf die geistige Entwicklung des Menschengeschlechts”. Werke in fünf Bänden, III, Schriften zur Sprachphilosophie, 368–756. Berlin: Rütten & Loening. Kraus, Peter A. 2000. “Political Unity and Linguistic Diversity in Europe”. Archives Européennes de Sociologie 41: 1.138–163. Kraus, Peter A. 2004. “Between Mill and Hallstein. Some Challenges to Intercultural Solidarity in the EU”. Cultural Diversity versus Economic Solidarity ed. by Philippe Van Parijs, 299–314. Brussels: De Boeck Université. Kraus, Peter A. 2008. A Union of Diversity. Language, Identity and Polity-Building in Europe. Cambridge: Cambridge University Press. Labrie, Normand. 1993. La Construction linguistique de la Communauté Européenne. Paris: Honoré Champion. Leclerc, Jacques. 2005. Les Langues par continent (at http://www.tlfq.ulaval.ca/axl/Langues/ 1div_continent.htm, last update: 16 February 2005). Pasolini, Pier Paolo. 1975. Scritti Corsari. Milano: Garzanti. Rokkan, Stein. 1999. State Formation, Nation-Building, and Mass Politics in Europe. Oxford: Oxford University Press. Schloßmacher, Michael. 1994. “Die Arbeitssprachen in den Organen der Europäischen Gemeinschaft. Methoden und Ergebnisse einer empirischen Untersuchung”. Sociolinguistica 8: 101–122. Shore, Chris. 2000. Building Europe. The Cultural Politics of European Integration. London: Routledge.



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Swaan, Abram de. 2001. Words of the World. The Global Language System. Cambridge: Polity Press. Taylor, Charles. 1994. Reconciling the Solitudes. Montreal: McGill-Queen’s University Press. Tully, James. 2005. “Communication Networks, Hegemony, and Communicative Action”. Constitutionalism Web-Papers, ConWEB No. 3/2005. Usher, John A. 1998. “Languages and the European Union”. The Frontiers of Europe ed. by Malcolm Anderson & Eberhard Bort, 222–234. London: Pinter. Wright, Sue. 2000. Community and Communication. The Role of Language In Nation State Building and European Integration. Clevedon: Multilingual Matters.

part 2

The protection of linguistic diversity in EU law

chapter 5

Union citizenship and language rights Peter Hilpold

The concept of Union citizenship, officially introduced into European Community law in the Treaty of Maastricht, has evolved with breathtaking speed, transforming itself into an important instrument for the reconceptualization of the European Community legal order. The European Court of Justice (ECJ) judgment in Bickel and Franz (1998) touched on language rights. As the concept of citizenship came to be qualified as what the Grzelzcyk judgment (2001) called the “fundamental status of nationals of the Member States”, it seemed only a matter of time before the principle of linguistic diversity would be further buttressed by the concept of Union citizenship. Although in the Kik case the Court of First Instance (2001) and the ECJ (2003) did not take up this challenge, it seems very likely that the concept of Union citizenship will prove highly relevant to the protection of linguistic diversity within the European Union in the future.

Introduction In the Bickel and Franz case (19981), the European Court of Justice (ECJ) made a clear connection between two rapidly evolving sets of rights within EU law: Union citizenship on the one hand and language rights (or, respectively, minority rights) on the other. Both concepts are in certain respects in dispute, but they offer enormous potential for further development. When the Bickel and Franz judgment was handed down, the emancipation process of Union citizenship as a concept with autonomous meaning was in its early stages, with strong scepticism still persisting. The Bickel and Franz judgment was the first ever in which measures relating to minority protection were considered a possible legitimate aim of the European Union.2

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Since Bickel and Franz, no further judgment dealing directly with Union citizenship on the one hand and language and minority rights on the other has been handed down. On the other hand, both concepts have undergone – independently of each other – a profound evolution. If we reconsider this issue today, and reconnect these two concepts eight years after the Bickel and Franz judgment, a somewhat different picture will emerge. Many aspects of the case are now far clearer, the dynamic residing in these issues having been demonstrated repeatedly. Viewed from the perspective of those who consider linguistic diversity an enrichment of the European cultural order, the legal environment seems far more propitious. If we take this improvement of the legal environment as our basic premise and seek a somewhat more detailed picture of the actual situation, it seems advisable to start with a closer analysis of the concept of Union citizenship as it stands today and of its development potential for the near future. We will begin with a short summary of the Bickel and Franz case, followed by an analysis of how Union citizenship can be seen today as an instrument for fostering language rights within the European Union, and by a consideration of further developments which seem probable in the light of recent European Court of Justice (ECJ) jurisprudence. The consequences flowing from the Kik judgments will be considered.3 Our conclusions will be set against the background of a changed and further changing EU constitutional order.

The development of Union citizenship The concept as such Although the concept of Union citizenship has a short history as a positive principle of EU law, in fact it has long been a cornerstone of the EC constitutional order. While Union citizenship was officially introduced into EC law with the Treaty of Maastricht, the idea of European citizenship dates back at least to the year 1961 when the European Commission launched the concept of a citoyenneté européenne in the context of the free circulation of workers (Hatje 2000: 370, citing Evans 1994: 683). This concept became especially prominent with the naming of the ad hoc Committee on A People’s Europe under the direction of Pietro Adonnino in 1984. While it was too early for the revision of the Treaties of Rome known as the Single European Act to take the proposals of the ad hoc Committee into account, Articles 8 to 8e of the Maastricht Treaty of 1992 gave the concept of European citizenship central importance in the attempt to forge a new European identity. In the absence of a European people it was clear from the very begin-



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ning that Union citizenship should be ascribed a high symbolic value. This was not the only concept to be given symbolic value in the Treaty of Maastricht: the entire treaty, drafted in a period of dramatic political changes in Europe, when old political divides and frontiers seemed to be rapidly disappearing, was loaded with symbolic terms and ideas. The new concept of a European Union itself – like the move from European Economic Community to European Community (Craig & de Búrca 2003: 755) – was to a large extent symbolic. It raised the hopes of those who believed in an ever closer “Union” without putting demands on the Member States and without requiring them to commit themselves too rigidly. The construction of the European Union on three pillars (the European Communities, common foreign and security policy, and cooperation in the prevention and prosecution of crime) introduced at the same time, had many traits in common with Union citizenship: it had a pronounced inspirational touch, it evoked similarities between the European Union and sovereign states, and it postponed really hard choices to a future, uncertain date. To be sure, the concept of Union citizenship was not entirely sympathetically received, primarily because of its vagueness. It was suggested that “citizenship is, in other words, nearly exclusively a symbolic plaything without substantive content” (Jessurun D’Oliveira 1995: 82). Others described the concept as a “metaphor” (Reich 2001) – a term that may at first sight mean no more than “standing for something else,” but in this context clearly bears a negative connotation: “citizenship” is seen as a sweeping, emotionally loaded concept incapable of keeping the promises it seems to imply – in fact, a mere placebo. On the one hand it was clear that European integration could not maintain momentum without the expression of lofty goals; on the other hand the will to make the necessary concessions in the field of national sovereignty was largely lacking. Dressing an existing fundamental freedom (that of free movement), along with some ancillary political rights, in new, suggestive, though confusing garb stimulated the integration process for a while – and indeed European integration still enjoys considerable support, as long as people are prepared – to a certain extent – to be deceived. In any case it would take some time before illusions died in confrontation with hard facts. As so often in EU law when there is an evident need to develop the law further but the necessary consent of Member States is lacking, an evolutionary clause was inserted which allowed for future changes of the constitutional order without having to go through the full formal process of treaty amendment. Such a provision can be found in Article 22 of the EC Treaty (formerly Article 8e). As has been seen in other cases,4 in the final analysis it is the ECJ that takes the lead and not the political organs.

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ECJ jurisprudence From the beginnings to Martínez Sala At first the ECJ was rather cautious when dealing – more indirectly than directly – with issues of Union citizenship. In Uecker5 the ECJ affirmed that Union citizenship was not intended to extend the scope ratione materiae of the Treaty to cover internal situations with no link with Community law, while in Skanavi6 the ECJ seemed to attribute to Article 8a (now Article 18) only a secondary, residual role with regard to other Treaty provisions, thereby also limiting its potential for further development (Craig & de Búrca 2003: 756). The case of Bickel and Franz, which will be treated in more detail later on, came to mark the real threshold: on the one hand, the judgment was carefully worded to ensure that no rupture with previous jurisprudence could be implied; on the other hand, it was evident that the Court was now prepared for a very extensive interpretation of the right not to be discriminated against in the exercise of the fundamental freedom of movement. Even though the link with Union citizenship was very cautious,7 this concept provided the solid foundations for such an approach. In Bickel and Franz the elements hinting at Union citizenship as a revolutionary concept are only sketchy – first, because the Court had recourse to a traditional mode of argument (though applied, as already mentioned, in a very extensive way) and, second, because the Court took every effort to demonstrate that the extension of the rights it was willing to grant would cause no further costs to the Member States, an issue very important to assure political acceptance of ECJ judgments.8 As is well known, also in the field of language rights or, more generally, in that of minority protection, the cost issue is of pivotal importance. In Martínez Sala, however, even this caution was given up.9 In hindsight it may be said that this was the case where the ECJ definitely unleashed the dynamic potential dwelling in the concept of Union citizenship. In view of its importance it seems appropriate to provide some detail about this judgment. Martínez Sala was a Spanish national who had been living in Germany since 1968. She had had various jobs, but since 1989 she had been living on social assistance. Until 1984 she had regularly obtained residence permits. For the period after 1984, she could only produce documents certifying that an extension of her residence permit had been applied for. She again obtained a residence permit as of April 1994. In 1993 she applied for a child-raising allowance from the Freistaat Bayern. Such allowances are granted, in principle, to German citizens or to workers under Article 7(2) of Regulation No. 1612/68, or to employed persons within the meaning of Article 2 in conjunction with Article 1 of Regulation (EEC) No. 1408/71. Ms Martínez Sala was neither a German citizen nor a migrant worker,



Chapter 5.  Union citizenship and language rights

nor was she even in possession of a renewed residence permit. She was simply a Union citizen living in another Member State who in the past had been granted a residence permit (but who had failed up to that moment to be granted an extension of this permit). Strangely enough, for the ECJ this sufficed. Once a Union citizen had been admitted she could fully rely on the nondiscrimination provision in Article 12 (ex Article 6) of the EC Treaty in all situations falling within the scope ratione materiae of Community law. This is a statement bearing enormous consequences, especially if one keeps in mind how the ECJ defines such “situations which fall within the scope ratione materiae of Community law”. As Tomuschat (2000: 451) points out, “almost anything can become enmeshed in the logic of freedom of movement to the extent that it tends either to facilitate or to hamper the full exercise of that right. [...] The Court simply asks whether the legal propositions or practice under review exerts any impact on one of the freedoms under the Treaty.”10 Such an interpretation implies a clear departure from the logic of material reciprocity heretofore guiding the extension of social benefits to migrant workers or to students – groups already participating in economic activity or preparing to do so. A Union citizen has, as such, contributed nothing to the economy of his country of residence, if one sets aside his role as a consumer and as a service receiver. It is true that child-raising allowances fall within the scope ratione materiae of Community law, but only with regard to a worker, or an employed or self-employed person (Tomuschat 2000: 452). To extend this right to all Union citizens means to give to the concept of citizenship an autonomous material content independent of the exercise of a fundamental freedom. This is a very important result also from the viewpoint of language or minority protection. Since measures of this kind do not constitute public goods, because their enjoyment creates additional costs, so there would be good reason to grant them only to those EU foreigners who enjoy the fundamental freedom of movement. This is, however, not the position taken by the ECJ. The Court presumes a degree of solidarity between the Member States that surely explores the outer borders of constitutional consent within the Union. On the other hand, it clearly strengthens European identity.

Further developments Once the ground was laid for attributing to Union citizenship a material content going beyond the rights resulting from the Articles 18 and following, the need for further clarifications was only a matter of time. The most prominent contribution in this regard was surely the case of Rudy Grzelzcyk, decided in 2001.11 Rudy Grzelczyk was a French citizen studying in Belgium. In the first three years of his studies he worked part-time but in the fourth year he wanted to con-

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centrate fully on his studies and therefore applied for minimex, a minimum subsistence allowance granted by the Belgian Government to Belgian citizens. Not being Belgian, Mr Grzelczyk was not entitled, according to the Belgian Government, to receive this allowance. The ECJ, confronted with this issue, ruled, in what was a very broad interpretation of Union citizenship, that denial of the allowance was to be considered a violation of EC law. This finding was based, first of all, on Article 12 (ex Article 6), which prohibits, as already mentioned, any discrimination based on nationality within the scope of application of the EC treaty. The crucial question was whether, and on the basis of what considerations, this situation fell within the scope of application of the EC treaty. As is well known, in the past the ECJ has ruled that EC foreign students have no right to maintenance allowances.12 The most obvious traditional way would have been to examine whether Mr Grzelczyk could be considered a worker. There were plenty of ways of making a strong case in this sense, and in fact Advocate-General Siegbert Alber argued exactly in this direction. The Court would have had, therefore, an easy way out of a delicate situation. But the Court did not take advantage of this possibility, however, and seems to have seized on the opportunity to further develop the concept of Union citizenship. It qualified Union citizenship as the “fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for” (Grzelczyk, para. 31). The Belgian Government’s statement according to which “the concept of citizenship has no autonomous content” (Grzelczyk, para. 21) was thereby expressly rejected. What was only implied in Martínez Sala now was said explicitly. The situations falling within the scope ratione materiae of Community law include (Grzelczyk, para. 33) “those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside freely in another Member State as conferred by Article 8a” (now Article 18). Therefore, it can be said that in principle it is sufficient to have the right to reside freely in another Member State in order to be entitled to all rights resulting from Union citizenship and, above all, not to be discriminated against by nationals of the state of residence. The Portuguese government, which intervened in this case, had pleaded for a more extensive concept of European citizenship and therefore wanted a more sweeping opening, declaring: ... since the entry into force of the Treaty on European Union, nationals of the Member States are no longer regarded in Community law as being primarily economic factors in an essentially economic community. ...[N]ationals of the Mem-



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ber States acquired the status of citizen of the Union and ceased to be regarded as purely economic agents, [so] it follows that the application of Regulation No 1612/68 ought also to be extended to all citizens of the Union, whether or not they are workers within the meaning of that regulation. (Grzelczyk, paras. 21ff.)

The Court referred instead to Article 3 of the Directive 93/96, which permits restrictions to be imposed on non-national students with regard to social assistance allowances. In fact, these restrictions are only of minor importance; seems rather that the statement of the Portuguese government points to the direction in which the concept of Union citizenship will develop. Union citizenship is a concept of EU law; it confers rights in cross-border situations or situations in which EU law can be invoked. In principle it does not apply in purely internal situations, that is, in a situation where a national of a Member State wants to exercise a right within his own state. As soon, however, as a connection with EC law can be established, the concept of Union citizenship becomes relevant. This was evidenced in the case of D’Hoop.13 Marie-Nathalie D´Hoop was a Belgian national who had completed her secondary school education in France and wanted to apply for a certain social benefit granted to Belgian nationals seeking first employment. This allowance is granted on condition that secondary education has been completed at an educational establishment in the applicant’s own country. The Court found that also in this case the concept of Union citizenship was applicable – so, even against a Member State of whom a person is a national: The situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 8a of the EC Treaty (now Art. 18). In that a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement. (D’Hoop, paras. 29–30)

As a result it can be said that Union citizenship is coming full circle. As in Grzelczyk, however, also in this case the Court leaves some discretionary power to the Member States to limit the extent to which social allowances have to be granted also to Union citizens: “[I]t is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned” (D’Hoop, para. 38).

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In Baumbast,14 finally, the Court accorded direct effect to Article 18. The Court stated in this context as follows (para. 84): As regards in particular the right to reside within the territory of the Member States under Art. 18 (1) EC, that right is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, Mr Baumbast therefore has the right to rely on Art. 18 (1) EC.

As a consequence, it can be said that Article 18 (1) grants directly applicable rights. Recourse to Article 12 is no longer necessary for a Union citizen to rely on Article 18 (Delli 2004: 48–49). The Court has thereby rendered explicit a principle that can already be deduced from the previous jurisprudence. In fact, also in Martínez Sala and in Grzelczyk the Court’s reasoning can be explained only if it is based on the implicit assumption that Article 18(1) is directly applicable. The solution adopted could be justified only by recourse to a directly applicable concept of Union citizenship (see Delli 2004: 49).

A first stock-taking What may appear to be a lengthy exposition of the development of the Union citizenship concept was deemed necessary to make fully understandable a principle which was poorly drafted and inserted into the EC treaty in an unsystematic way, but which nonetheless has revealed an enormous dynamism in a relatively short period of time and has even greater potential for further development. To say, as the Court said in Grzelczyk, that Union citizenship is destined to be the fundamental status of nationals of the Member States, hints at a very broad potential for development which has been – as of now – only partially transformed into positive law or laid open by the Court. Recognizing the direct applicability of the citizenship principle enhances further the pace of this concept-modelling process as the need for tortuous argumentation becomes obsolete. It can also be assumed that in the future the Court will be asked even more frequently to define the boundaries of Union citizenship. Likewise very important is the fact that the Court did not stop short of applying the dynamics of Union citizenship also to the field of social allowances – even in cases where no relevant participation in the economic life of a Member State was required. However, the statement in D’Hoop that it is legitimate for the national legislature to require a real link between the applicant for an allowance and the geographic employment market concerned, does have a somewhat limiting effect on the scope of this principle. Finally, when the Court required, as in Grzelczyk, that a certain degree of financial engagement between nationals of a host Member State and nationals



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of other Member States had to be accepted, it pointed to a principle that leaves very broad room for interpretation and adds further momentum to the evolving concept of Union citizenship.

The case of Bickel and Franz As we suggested earlier, we will give special attention to the Bickel and Franz case as this is the only one where Union citizenship has been directly linked to the issue of language rights. The case is well known, so a brief summary will suffice. Horst Otto Bickel, an Austrian lorry driver, and Ulrich Franz, a German national in Italy as a tourist, were prosecuted for minor criminal offences at Bolzano in South Tyrol, where, because of the presence of a large German-speaking minority, German and Italian have the same status in criminal (and also in civil and administrative) proceedings. Only residents of this province could, however, opt for the German language while for all other defendants the official Italian language would apply. Wishing to opt for German as the procedural language, Bickel and Franz saw in this provision a clear instance of discrimination under Article 12 (ex Article 6). The procedural provisions at issue were said to fall within the scope of the Treaty in light of the provisions on Union citizenship and of Article 49 (ex Article 59) on the freedom to provide services. As already indicated, in 1998 the Court avoided addressing in detail the concept of Union citizenship. It could resolve the case merely by recourse to Article 49, but Advocate-General Francis Jacobs invited the Court to take advantage of this situation to deliver finally a clear statement on the issue of Union citizenship. The way in which this invitation was pronounced merits citation: [...] The notion of citizenship of the Union implies a commonality of rights and obligations uniting Union citizens by a common bond transcending Member States nationality. The introduction of that notion was largely inspired by the concern to bring the Union closer to its citizens and to give expression to its character as more than a purely economic union. That concern is reflected in the removal of the word “economic” from the Community’s name (also reflected by the Treaty on European Union) and by the progressive introduction into the EC Treaty of a wide range of activities and policies transcending the field of the economy. Against that background it would be difficult to explain to a citizen of the Union how, despite the language of Articles 6, 8 and 8a, a Member State other than his own could be permitted to discriminate against him on grounds of his nationality in any criminal proceedings brought against [him] within its territory.

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Freedom from discrimination on grounds of nationality is the most fundamental right conferred by the Treaty and must be seen as a basic ingredient of Union citizenship.15

The year 1998 was probably too early for the Court to back such a sweeping declaration; it accepted the consequences but avoided a formal commitment in this sense. If, today, the Court were to have before it a case similar to Bickel and Franz, it might be more daring, endorsing the statement by the Advocate General not only in substance but also in form. At this later date it is no longer necessary to build a complicated and hardly convincing legal construction based on the exercise of fundamental freedoms and the nondiscrimination provision in Article 12 of the EC Treaty, in order to open specific language provisions of a Member State’s legal order to all Union citizens. It is instead the case that Union citizenship provides autonomous, fundamental status rights. These rights are not only of a negative nature but can also imply the incurring of costs which have to be supported by the host State in view of the principle of financial solidarity between nationals of different Member States.16

The Kik case The Kik case was examined by the Court of First Instance and afterwards by the ECJ.17 Christina Kik, who was a lawyer and a trade mark agent in the Netherlands in a firm specialising in intellectual property work, intended to register the word “Kik” as a Community word trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (hereinafter the Office). According to the Council Regulation No 40/94 of 20 December 1993 on the Community trade mark,18 the languages of the Office are English, French, German, Italian and Spanish. The applicant for a Community trade mark can file an application in one of the official languages of the Community but has to indicate also a second language as the language of the Office. The applicant accepts this language as a possible language of proceedings for opposition, revocation or invalidity proceedings. Ms Kik presented her application in Dutch and indicated Dutch also as a second language. As a consequence her application for registration was dismissed as unlawful. Before the Court of First Instance Ms Kik relied, amongst others, on Article 21 EC (then Article 8d) according to which every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 EC in one of the languages mentioned in Article 314 EC and have an answer in the same language. The Court of First Instance took, however, a different position:



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Article 21 EC refers to the Parliament and the Ombudsman and Article 7 EC mentions the Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors and also the Economic and Social Council and the Committee of the Regions. In so far as the paragraph in question is applicable ratione temporis to this case, the Office is in any event not one of the institutions or bodies referred to in Article 7 EC or Article 21 EC.19

This statement was substantially confirmed by the ECJ: With regard to relations between citizens and the Community institutions and bodies, Article 8d of the Treaty, as amended by the Treaty of Amsterdam, requires, inter alia, that the institutions and certain bodies correspond with the citizens of the Union in one of the languages mentioned in Article 248 of the Treaty. That provision, which was not yet in force when the contested act was adopted, is not in any event generally applicable to all bodies in the Union. In particular it does not apply to the Office, as the Court of First Instance correctly points out at paragraph 64 of the contested judgment.20

[...]

Account must also be taken of the fact that the Community trade mark was created for the benefit not of all citizens, but of economic operators, and that economic operators are not under any obligations to make use of it.21

On the whole, it can be said that both the Court of First Instance and the European Court of Justice adopted a rather restrictive vision of Union citizenship and the possible consequences flowing from it with respect to language rights. This position is hardly reconcilable with the qualification of this status as the “fundamental status of nationals of the Member States”.22

Consequences If initially scepticism towards the new concept of Union citizenship prevailed, as it was thought that it would add nothing to already existing rights and guarantees, the situation has in the meantime dramatically changed. Let us take a closer look at the relationship between this concept and language rights, first through a conservative examination of the immediate consequences of Bickel and Franz today, in an enlarged European Union, and second by exploring the implications of the further development of Union citizenship for the exercise of language rights, taking into account also the possible entry into force of the reform treaty. With regard to the first point it can be said that in the Bickel and Franz jurisprudence – if viewed in isolation – there is some development potential though not an unrestricted one. The application of Bickel and Franz outside South Tyrol

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requires that similar conditions obtain, particularly that there be a question of language choice in judicial proceedings or proceedings before public authorities. Such a situation can arise, for example, in Belgium (Desolre 2000), in Italy and in Austria (Hilpold 2001: 335ff.). As a consequence of the EU enlargement process, many more situations have arisen where the principles elaborated in Bickel and Franz apply. This is, for example, the case with Slovenia, where this principle has extensive implications. Slovene citizens can take advantage of special language rules both in Austria and in Italy. In Italy these particular rights will be further amplified once Law 38 of 23 February 2001 on the protection of the Slovene linguistic minority in the Friuli-Venezia Giulia region is implemented.23 Also the protective measures for Hungarian minorities that several Eastern Europe countries had to introduce during the accession process have created situations in which Bickel and Franz becomes relevant. Although Bickel and Franz dealt only with the use of language in a criminal proceeding, it can be argued that this principle applies to all proceedings and to all cases in which a particular language can be used before public authorities. It is not even necessary that a Union citizen require the use of his or her own language: he or she may rely on this principle for whatever reason. If these are the consequences of Bickel and Franz seen from a traditional viewpoint, Union citizenship harbours a much greater potential for the future development of language rights in Europe. This is, for example, the case with the Baltic countries of Latvia and Estonia. As is well known, both countries had a very large Russian-speaking population when they gained independence: Russia had wanted, in the past, to “sovietize” these territories (Reich 2004) and for that reason both countries, once independent, adopted harsh measures that again were extremely problematic from a human rights standpoint. These populations were denied citizenship and therefore they were also denied many civic rights in their countries. Only after severe pressure from outside, especially from the EU, were these measures softened. It is surely the case that the EU acted primarily out of humanitarian and also out of political considerations. In fact, the enlarged EU would be faced with severe minority and security problems. But Union citizenship also comes into play here. It is true that Union citizenship is accessory in foundation, that is, it cannot be awarded independently from citizenship of a Member State. It is also true that Member States are in principle free to award citizenship.24 On the other hand, the Member States are obliged to respect the principle of loyalty as expressed in Article 10 EC. In this sense the accession candidates had to adopt a law of citizenship that would not violate the ordre public européen. But there is even more to Union citizenship and language rights. If Union citizenship is the “fundamental status of nationals of Member States” (Grzelzyk), once the Charter of Fundamental Rights becomes the binding, hard law of the



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European Union, further consideration will have to be given to the creation of minimum standards for minority and language protection throughout the European Union. Union citizenship renders these rights more mobile. The Union citizen carries these rights with him or her. Of course, this principle does not operate without restriction: minority and language protection regimes are territorially restricted, first and foremost for the practical reason of cost containment. However, we have seen that the principle of financial solidarity applies and therefore Member States can be required to undertake some additional spending. Much will depend on the interpretation given to Article 22 of the Charter of Fundamental Rights. If this provision is considered a sufficient basis for positive measures, Union citizenship would be a powerful vehicle to amplify the effects of any initiative undertaken. A further consequence could result from the new concept of Union citizenship. As we know, a matter currently in hot dispute in Europe is the question of whether special protective measures should be reserved for traditional groups with longstanding ties to a certain territory or whether also so-called “new minorities” should be able to take advantage of these provisions (see Hilpold 2004). The Committee of Ministers of the Council of Europe, within its surveillance activity on the Framework Convention for the Protection of National Minorities, seems to endorse the former approach (Hilpold 2004). It can be argued that the evolving principle of Union citizenship will bolster this development, since the very essence of Union citizenship, the fight against discrimination,25 favours a widely uniform application of protective norms as soon as comparable protection needs are identified. The development may be seen as potentially dangerous for minority and language protection as traditionally understood in Europe. If the number of potential beneficiaries of special rules inflates to an uncontrollable size, states may withdraw protective measures altogether. On the other hand, this danger, often voiced after Bickel and Franz, does not seem very realistic. It may be true that some protective measures adopted by single Member States in the field of minority protection are, at least at first sight, against the liberal spirit of EC law. Union citizenship, however, will not constitute an adequate basis for a further extension of purported abuses. If it leads to an extension of special regimes this may be seen to be at odds with the harmonizing and equalizing force of EC law. On the other hand, there is also much value in a generalization of protective norms and in the wiping out or at least softening those traits of special protective measures that give them the characteristic of a privilege, of a discriminatory practice, even if positive in nature. The development of Union citizenship as described above may therefore constitute a valid contribution to integrating protective measures firmly and smoothly into constitutional orders ever more wary of fighting any form of discrimination.

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The Kik jurisprudence may appear to be a step backwards, but it seems likely that the powerful dynamic residing in the concept of Union citizenship, materializing, above all, in the area of free movement, will ultimately affect all areas of EU law. We conclude, then, that boundaries between concepts that were once separate and independent are starting to blur. Of course, the entire issue is highly speculative and the outcome of recent developments will depend on various factors not fully known at present. Once we accept, however, that Union citizenship is an instrument that favours the adoption of positive measures, this concept assumes an independent meaning and we are already far away from the original approach directed mainly at opening existing language regimes to EU foreigners. Again, it is still unclear how the situation will develop, but to qualify Union citizenship as the “fundamental status” of nationals of Member States is a clear hint that this is the direction in which the whole development is directed.

Notes 1. Case C-274/96 Bickel and Franz [1998] ECR I-7637. 2. Bickel and Franz, para. 29. 3. Case C-361/01 P Kik [2003]. 4. This was the case, for example, both in the field of education and in the area of taxation. 5. Cases C-64/96 and 65/96 Uecker [1997] ECR I-3171. 6. Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929. 7. See para. 15 of the judgment: “[...] Furthermore, pursuant to Article 8a of the Treaty, ‘[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect’.” The judgment continues with the following statement: “In that regard, the exercise of the right to move and reside freely in another Member State is enhanced if the citizens of the Union are able to use a given language to communicate with the administrative and judicial authorities of a State on the same footing as its nationals. Consequently, persons such as Mr Bickel and Mr Franz, in exercising that right in another Member State, are in principle entitled, pursuant to Article 6 of the Treaty, to treatment no less favourable than that accorded to nationals of the host State so far as concerns the use of languages which are spoken there.” 8. The extent up to which solidarity can be requested from the various Member States is a very delicate issue. See in this regard, Hilpold (2007). 9. Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-2691.



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10. A considerable number of authors are of the opinion that a close relationship between a certain subject and the EC treaty suffices in order that Article 12 EC applies. Accordingly, it would not be necessary for the European Community to have explicit regulatory powers in this field. See Kadelbach (2005: 1165). 11. Case C-184/99 Rudy Grzelczyk v. Centre Public d´Aide Sociale d´Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193. 12. See Case 197/86 Brown [1988] ECR 3205. 13. Case C-224/98 Marie-Nathalie D´Hoop [2002] ECR I-6191. 14. Case C-413/99 Baumbast, R and Secretary of State for the Home Department [2002] ECR I-7091. 15. Case C-274/96, Opinion of AG Jacobs of 19 March 1998, para. 23 s. 16. See Case C-184/99 Grzelczyk [2001] ECR I-6193, para. 44. It can be argued, however, that this request for solidarity has been excessively strained in the Case C-147/03, European Commission against Austria, Judgment of 7 July 2005, where Austria has been obliged to grant to all Union citizens free access to her universities. See Hilpold (2005, 2006). 17. For the sake of completeness it should be mentioned that, in all, there were four “Kik” proceedings. The first two proceedings, before the Court of First Instance and the ECJ respectively, were dismissed on admissibility grounds. 18. OJ 1994 L 11, p. 1. 19. See para. 64 of the judgment of 12 July 2001 in Case T-120/99 Kik v. OHM [2001] ECR II- 2235. 20. See para. 83 of the judgment of 9 September 2003 in Case C-361/01 P Kik v. OHM [2003] ECR I-8283. 21. Para. 88 of the judgment. 22. See also Nic Shuibhne (2004), who is broadly critical of the insufficient debate on language arrangements during these proceedings. 23. In this regard, the Advisory Committee on the Framework Convention for the Protection of National Minorities writes as follows in its opinion of 25 October 2005: “To date, the implementation of this piece of legislation has regrettably not really commenced due to the persisting political, legal and technical disputes over the demarcation of its territorial scope of application. There is, however, reason to believe that a number of measures foreseen in this Law could be taken without further delay and implemented in a number of municipalities, whose inclusion in the territorial scope of application does not raise any particular problems.” See ACFC/INF/OP/II(2005)003, para. 10. 24. Of course, the principles laid down in this field by the ICJ in the Nottebohm case (ICJ Reports 1955, 423ss.) regarding the requirement of a “genuine link” have to be respected. 25. See in this sense AG Jacobs in Bickel and Franz.

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References Craig, Paul & Grainne de Búrca. 2003. EU Law. Oxford: Oxford University Press. Delli, Chantall. 2004. Das Wesen der Unionsbürgerschaft (= Basler Schriften zur Europäischen Integration 69). Basel: Europa Institut der Universität Basel. Desolre, Guy. 2000. “Le Principe de non-discrimination, la liberté de circulation et les facilités linguistiques en matière judiciaire”. Cahiers de Droit Européen 3–4.311–321. Evans, Andrew. 1994. “European Citizenship: A Novel Concept in EEC Law”. American Journal of Comparative Law 32.679–715. Hatje, Armin. 2000. Commentary to Article 17. EU-Kommentar ed. by Jürgen Schwarze, 370– 381 Baden-Baden: Nomos. Hilpold, Peter. 2001. Modernes Minderheitenrecht. Vienna: Manz, Nomos & Schultess. Hilpold, Peter. 2004. “Neue Minderheiten im Völkerrecht und im Europarecht”. Archiv des Völkerrechts 42.80–110. Hilpold, Peter. 2005. “Hochschulzugang und Unionsbürgerschaft”. Europäische Zeitschrift für Wirtschaftsrecht 21.647–652. Hilpold, Peter. 2006. “Quotenregelungen im Gemeinschaftsrecht – Rehabilitierung eines an sich verpönten Instruments?” Europäische Zeitschrift für Wirtschaftsrecht 11.333–336. Hilpold, Peter. 2007. “Solidarität als Rechtsprinzip – völkerrechtliche, europarechtliche und staatsrechtliche Betrachtungen”. Jahrbuch des Öffentlichen Rechts 55.195–214. Jessurun D’Oliveira, Hans-Ulrich 1995. “European Citizenship – Pie in the Sky?”. A Citizen´s Europe: In Search of a New Order ed. by Allan Rosas & Esko Antola, 58–84. London: Sage. Kadelbach, Stefan. 2005. Case note to C-209/03, Bidar, judgment of 15 March 2005. JuristenZeitung 23.1163–1166. Nic Shuibhne, Niamh. 2004. Case note to Kik. Common Market Law Review 41.1093–1111. Reich, Norbert. 2001. “Union Citizenship – Metaphor or Source of Rights”. European Law Journal 11.722–743. Reich, Norbert. 2004. “The European Constitution and New Member Countries: The Constitutional Relevance of Free Movement and Citizenship”. Revised text of the Annual Lecture 2004 at the Centre for European, Comparative and International Law (CECIL), University of Sheffield, February 2004. Tomuschat, Christian. 2000. Case note to Martínez Sala. Common Market Law Review 37.449– 457.

chapter 6

EC law and minority language policy Some recent developments1 Niamh Nic Shuibhne

This contribution reviews the evolving legal framework that underpins language rules and practices in the European Union. It seeks to address EU language issues holistically, arguing in particular that concerns about the management of the official EU languages should not be divorced artificially from questions relating to minority languages. The development of the legal framework has, however, become increasingly fragmented, and this has problematic implications for both structural and substantive coherence. It is suggested that until and unless the legal foundations of EU language policy are carefully worked out, its continuing ad hoc construction will never deliver a more rational yet ideologically and legally sound EU language scheme.

Introduction If asked “Have recent times produced key European Union (EU) developments for the status of minority languages?” an observer’s instinctive answer would most probably be an abrupt, quite simple, “No”. On reflection, however, more has been going on than might at first be presumed, but with somewhat mixed results. A number of more linguistically inclusive policy initiatives have been published, for example – yet the Court of Justice has confirmed the legitimacy of a controversial cutting of language options within EU agencies and other noninstitutional bodies. Unprecedented EU enlargement has incurred an equally unprecedented linguistic enlargement, yet little has changed in terms of institutional language management – and so on. The EU is also in the midst of a vibrant period of constitutional reflection more generally, reflected in the Treaty

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establishing a Constitution for Europe (although, at the time of writing, this is a document with a rather different future).2 Why, then, might the prevalence of minority language issues not have seemed more readily apparent? After briefly introducing the EU language framework, this contribution will then tour the various developments outlined above, employing a broad division between “policy” and “legal” events. The analysis will highlight two key themes. First, in light of the way in which language policy has evolved (or not evolved) in the EU context, perhaps we need to rethink our understanding or categorisation of “minority languages” per se; we can no longer conceptualize minority languages as those which, in a simple sense, are not official EU languages, because even within the supposedly privileged realm of officialdom, linguistic hierarchies are intensifying. It was never really appropriate to think of the EU languages as “equal” in all respects. But not addressing or facing up to their differences in use and in de facto status has now created an even more critical situation; it is simply a fact that there are layers of “minority-ness” both within and outwith the official EU language framework, and continuing to pretend otherwise exacerbates inequality rather than the contrary. Second, the historical absence of coordination among various actors has long bred a fragmented arena for the making and hearing of minority language claims in the EU sphere. This generates, essentially, a tale of incoherence. Language matters tend to be considered with an acute singularity of interest in the EU, divorced from an awareness of how different claims interact, how their mutual dependence can affect the success or otherwise of a proposed policy approach. It is a deeply problematic method, the misshapen fruits of which are felt all the more keenly now that the broader EU framework continues to deepen and evolve. Minority language status, in whatever sense this descriptor might be understood, has simply not deepened and evolved accordingly.

Outline of the EU language framework This section seeks to provide a basic outline of the status quo, of the way in which the EU organizes its languages and their functions, and of the place of minority languages within that scheme. The EU now has twenty three official languages – Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish – the functions of which will be set out in more detail below.3 The position of Irish is exceptional. Although it is now an official language, it has a more limited status and, in particular, not all secondary legislation is required to be translated into Irish. For all other ­languages



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with official status in the Member States, a long history of exclusion from the EU official language framework has been ameliorated to some extent by recent developments, a move that will be evaluated in this chapter against a variety of informing, and indeed often competing, principles such as fairness, efficiency, coherence and legal certainty. To understand what these regional and/or minority languages are broadly excluded from, and the implications of that exclusion, a brief sketch of the official EU language scheme will now be outlined. First, Article 314 EC ensures that, in effect, 23 language versions of the Treaties exist and that all of them are equally (legally) authentic. Article 290 EC provides that “[t]he rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Rules of Procedure of the Court of Justice, be determined by the Council, acting unanimously.” The Council realised this mandate in Regulation 1/58,4 which (as of January 2007) establishes 23 official and working languages of the Union institutions. This amounts, in effect, to a transposition of the linguistic inclusiveness codified in Article 314 EC. Article 1 of Regulation 1/58 distinguishes explicitly between working and official languages, but the Regulation does not proceed to realise this difference in any further detail in subsequent provisions. Instead, it goes on to set down a simple framework in regard to communications between the Community institutions and the Member States, and natural or legal persons subject to their jurisdiction. Member States and persons subject to their jurisdiction may write to the institutions in any of the official Community languages and “[t]he reply shall be drafted in the same language” (Article 2); for natural persons with the nationality of a Member State, this rule is bound up with EU citizenship rights (see Article 21 EC). But even within the less constitutional premise of Regulation 1/58, it is clear that language choice (at least within the language scheme parameters) is conferred on the Member States, and on individuals where relevant, rather than on the institutions. For communication the other way around, documents sent by a Community institution to a Member State or to a person subject to its jurisdiction must be drafted “in the language of such a state” (Article 3; that that language must be one of the official EC languages is understood implicitly here, since these are the only languages mentioned in Regulation 1/58 in the first place).5 Although essentially a matter of “internal” work throughout the drafting and adoption processes, regulations and other legislative documents of general application must be drafted in all of the official/working languages (Article 4); each language version is treated as equally authoritative in a legal sense. In a related vein, Article 5 requires publication of the Official Journal of the European Union in the official languages also. Article 6 provides that “[t]he institutions of the Community may stipulate in their rules of procedure which of the languages

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are to be used in specific cases,” allowing, in effect, that the institutions may determine their own internal language practices; so the reality of “working languages” is implied here, but that terminology is not used. It is clear that the institutions do work internally in a considerably reduced number of languages – French alone in the Court of Justice, for example. The Court is subject generally to Regulation 1/58 but, according to Article 7, “[t]he language to be used in the proceedings of the Court of Justice shall be laid down in its rules of procedure.”6 In summary, then, minority language versions of the Treaties do not exist (or do not exist yet, more accurately) and minority languages are essentially outwith the fundamental core of Regulation 1/58. Quite apart from the official language framework, however, there is something of a detached stream of activity regarding minority language promotion (recent developments are discussed below).

Some policy initiatives Bruno de Witte (2004: 240) has written that there is evidence of a negative, but not a positive, language policy within the EU. This insight captures precisely the rather haphazard way in which language issues are tackled by the Community institutions. Language questions clearly impact on the EC in both direct (for example, the translation of Community documents) and more indirect ways (for example, rules on product labelling vis à vis the free movement of goods;7 more recently, regarding the free movement of persons, the much-publicized “Europass” mobility initiative, which includes a language portfolio8). But these different types of language questions share a tendency to be dealt with reactively: there has been no proactive drive towards more systematic language policy planning or management that might cut across the various strands of EU language need. In the examples mentioned, as in others, it is also difficult neatly to separate minority language issues from language issues more generally. And the difficult question of Community competence should, of course, be mentioned here also. Apart from the legal basis that allows for the determination of language rules in the institutions,9 the Treaty generates no authority for EC language initiatives which would allow for the monitoring or shaping of internal Member State language practices more directly. Any EC measure on minority language policy which goes beyond supplementing and supporting Member State action therefore skirts the boundaries of appropriate competence delimitation unless a clear linkage to a Treaty legal basis can be divined. Put simply, the institutions cannot act as they please: policy development is always constrained by the contents and parameters of the Treaties. The most obvious inclination here is to explore the potential



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of the cultural policy provisions; but the limitations inherent in this legal basis are already well-documented.10 Following on from the loose political/legal division introduced at the outset, the work of the “political” EC institutions – primarily, the European Parliament and, perhaps to a lesser extent, the Commission – has always been at the forefront of more “direct” minority language action. Despite the ambiguity surrounding appropriate legal bases (all the more problematic before the Maastricht Treaty introduced the limited competences in education and culture), the European Parliament resolutions which spanned the 1980s and early 1990s are somewhat legendary in this field.11 After a considerable gap in time, a Resolution adopted in 2001 on “regional and lesser-used European languages” focused primarily on the value of language learning, given that the European Year of Languages, a joint initiative of the Community and the Council of Europe, was just then coming to an end.12 A varied, but somewhat scattered, agenda for future action can be derived from the Resolution’s closing paragraphs, with the Parliament calling for funding for a multiannual programme for language learning (to include regional or lesser-used languages); mindfulness of linguistic diversity and language rights in candidate countries in respect of the (then) future EU enlargement; exploration of legal bases for sustained funding to promote regional and lesser-used languages;13 implementation of Article 22 of the Charter of Fundamental Rights;14 and Member State signature and ratification of the Council of Europe’s European Charter on Regional or Minority Languages.15 On 14 July 2003, the Parliament’s Committee on Culture, Youth, Education, the Media and Sport presented “recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity”; the rapporteur was Michl Ebner.16 Again, emphasis was placed primarily on the provision of – sustained – funding for language learning initiatives, and the remedying of Community initiatives in this field to date by including regional and lesser-used languages in language education programmes. A European Agency for Linguistic Diversity and Language Learning was also proposed. The Report suggested Articles 149, 150, 151 and 308 EC as the appropriate legal bases for Community action. Less than a fortnight later, the Commission published its Action Plan for 2004–2006 on “Promoting Language Learning and Linguistic Diversity”.17 There are three main strands or policy objectives in the Action Plan: life-long learning, better language teaching, and the building of a “language-friendly environment”. Within the ambit of this last ambition, the Commission finally brings regional and minority languages into language learning programmes, but with no real discussion at all of why and/or how. The expansion of the language range, as a policy

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shift, is surely to be welcomed; but only time will tell if this one-model-fits-all approach is either wise or sustainable. Perhaps what comes across most strikingly from this very brief overview of the political minority language initiatives of recent years is how little has changed since the early European Parliament resolutions; the ambitions and objectives that were evoked therein continue to guide the institutions today. Legal competence has since been developed, but political difficulties have proven slow to recede. Almost all institutional energies, and thus concrete action, have been concentrated on the relatively non-controversial sphere of language learning – a crucial and critical dimension of (minority) language policy certainly, but a limited one nonetheless. That this has been achieved at the expense of a more inclusive, more coherent approach to EU language planning will perhaps become more apparent below.

Development of the legal framework Three issues in particular will be addressed in this section: first, the impact on the legal framework of EU (linguistic) enlargement; second, recent case law of the Court of Justice which has had critical implications for the sustainability of that framework; and, finally, initiatives which have generated critical amendments to almost five decades of EU linguistic management. Throughout this section, the conceptual or definitional question of what now constitutes a “minority” language in the EU context takes on particular importance. It is not just that action to promote languages without any official place in the EU – “straight” minority languages – rests on a precarious footing; rather, it is that the de facto hierarchies of use and of status attached to even the official languages are being calcified – not in any careful or disciplined way, but much more subtly, much more discretely, and thus all the more dangerously.

Language and EU enlargement Perhaps the most striking aspect of the 2004 EU enlargement process, a unique enlargement in many respects but for present purposes in scale alone, is how little discussion, at least in public, seemed to take the accompanying linguistic enlargement of the EU into account. This eerie and unsettling silence was equally evident throughout the Convention (on the Future of Europe) process which prepared a draft of the Treaty establishing a Constitution for the European Union. The stable door is now closed, but the horse has well and truly bolted: the straining linguistic



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services of the institutions are generating more (negative) coverage than EU language issues ever have; and, oddly, as detailed below, political actors subsequently set to work on unpicking the (official) language framework, after both the Convention and intergovernmental negotiation phases had been completed. First, to look at the 2004 EU enlargement specifically, the linguistic dimension of the pre-accession negotiations was concentrated almost exclusively on domestic minority (including language) rights protection standards within the candidate countries.18 In as much as the Nice Treaty can be considered a blueprint for the functioning of the institutions in the enlarged Union, it is astonishing that no real consideration appears even then to have been given to the practical hurdles facing the EU interpretation and translation services and thus to serious reviews of the official EU language framework. From 1 May 2004, a language scheme of twenty as opposed to, previously, eleven languages had to be delivered and managed, an almost doubling of requirements.19 In terms of status, the clear presumption was that the Union of fifteen Member States and eleven official and working languages would enlarge exponentially to a Union of twenty-five Member States and twenty official and working languages, thereby continuing to represent at least one official language of each Member State. Moreover, no special concessions were sought, thinking, for example, of the status of the Turkish language in Cyprus.20 And the minority languages of the new Member States thus acquired a similar status to the minority languages of all other Member States in the Union language framework at that time, that is, absolutely none at all. Almost immediately, however, difficulties emerged. Translation of official documents into Maltese was suspended from the outset, “due to the current situation regarding the recruitment of Maltese linguists and the resulting lack of qualified translators”.21 More generally, the strains placed on the translation services were blamed for everything from soaring costs to serious legislative delays.22 All of this stands in marked contrast to the celebratory enlargement rhetoric of harmonious linguistic diversity. As already noted, the parallel process of constitutional reform more generally, via the Convention on the Future of Europe, reflected no more intensely on either the ideological or practical stresses of the multilingual mammoth the EU was about to become.23 It is also noteworthy that proposals for reform actually submitted to the Convention tended to echo the division referred to throughout this summary: emphasis was placed on either increasing support for minority language promotion within the Member States, or on reforming the institutional language rules of the EU itself. An awareness of the intertwined reality of these language questions, of the need for a more systematic appreciation of their interconnectedness, is consistently lacking. It was somewhat surprising to note, then,

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that moves to amend the fundamental (Treaty) language framework bubbled over after the completion of the Convention process (see below).

Legal evaluation of the language framework While, politically, the Member States have achieved partial expansions of the official language framework (see below), the Community Courts have meanwhile been moving instead to confine both the scope of that framework and the ideological basis underpinning it. Most Luxembourg case law that touches on language has done so in the indirect sense outlined at the outset of this contribution.24 At the culmination of the series of Kik cases, however, the Court of Justice had an opportunity to pronounce on both the principles and application of EU language arrangements. The Kik litigation25 challenged the language rules operable in the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), an EC agency established to process applications for Community trade marks. As prescribed by Council Regulation, OHIM recognises only English, French, German, Italian and Spanish as its working languages.26 An application for a Community trade mark may be filed in any of the official EC languages, but applicants must specify a second language – and this must be an OHIM working language – in which the Office may send written communications. Furthermore, the applicant is deemed to accept this second language as the language to be used in opposition, revocation or invalidity proceedings in certain circumstances.27 If the Community trade mark is granted, it is then translated into the language of each Member State designated in the application. It is difficult to summarise this complex web of judgments, but the following key principles should be noted. First, the Court distinguished between the institutions listed in Article 7 EC, which are bound by the rules in Regulation 1/58, and other agencies and bodies, which are not.28 Thus, while OHIM deals constantly with trade mark agents throughout the Member States, its linguistic obligations may legitimately be diminished by the Council (notwithstanding that the latter is itself bound by Regulation 1/58); neither do the OHIM language rules have to accord with the theme of linguistic equality that characterises the Regulation, with the linguistic obligations that are placed on the institutions in regard to communications with natural or legal persons. Second, the Court, by not expressly contradicting the more overt stance of the Court of First Instance, could be said to have implicitly rejected the applicant’s assertion that this very “theme” of linguistic equality was a fundamental principle of Community law. The argument that non-discrimination on grounds of nationality (Article 12 EC) incorporates non-discrimination on grounds of language was not really dissected; the Court of Justice talked about



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appropriate and proportionate justification, about the balance between principle and efficiency, but it never actually set out the principle from which a departure was being justified.29 The reluctance of the Court to engage in a more thorough contemplation of discrimination may well be unsettled in the future, however, if (with ratification of the Constitutional Treaty) Article 21 of the Charter of Fundamental Rights – requiring a general prohibition of discrimination on a number of grounds, which expressly includes language – becomes legally binding through the imminent Treaty reform process. It is difficult to see how the Court could employ its Kik evasion tactics in that strengthened legal environment. Finally, it should be observed that the judgment is grounded in a number of formalistic distinctions – as noted above, institutions versus agencies and bodies; and also citizens acting as such versus citizens acting in an economic capacity30 – which simply do not bear up to substantive scrutiny. Whether a document originates from an institution or another body, or whether the nature and content of the communication are economic or otherwise, tells us absolutely nothing about its impact on the individual concerned. Ironically, in the EU context, more “citizens” probably deal with bodies and agencies than with the institutions, and in an economic capacity than in any other type of situation. And these communications can bear considerably on both their rights and obligations. In this vein, the blanket selectivity of legal measures to be (and not to be) translated in the Irish and Spanish proposals outlined below looks equally problematic; for individuals, decisions and other Community legal measures can be of at least equal, and often far more, importance than regulations. The significance of non-institutional EU bodies with respect to the rights and obligations of individuals is highlighted still further by two matters, one ongoing, one recently (though only superficially) resolved. First, the draft Regulation on the Community Patent (COM [2000] 412) includes some detailed discussion of language arrangements (including translation costing tables) and proposes, in effect, a regime of three languages – English, French and German. The European Parliament, via the Palacio Report on the draft Regulation (A5-0059-2002), argued for comparability with the OHIM trade mark regime (thus adding Italian and Spanish). The Council was not initially swayed, however; at a meeting on 3 March 2003, the summary of its discussions on the draft Regulation points clearly to the Commission’s original three-language model (see PRES/03/59, 3 March 2003). But the matter is proving enduringly controversial. The summary of discussions for the Council meeting on 17 and 18 May 2004 notes that it did not reach agreement by unanimity, as required, on the Presidency’s compromise proposal for a Council Regulation on the Community patent. Germany, France, Spain and Portugal voted against and Italy abstained. Noting that all con-

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ceivable compromise solutions for the only outstanding issue, which concerns the translation of patent claims, had been tried, the Presidency stated its intention to refer this matter to the President of the European Council. (PRES/04/140, 17 May 2004)

At the time of writing, the stalemate continues. Second, language decisions taken within another non-institutional body (Eurojust) came very recently to be reviewed by the Court of Justice.31 As in the early Kik cases, the Court did not have to consider the substantive questions here, dismissing the application at the preliminary hurdle of admissibility. But the detailed analysis of Advocate-General Poiares Maduro, on the substance of the language issues raised, deserves discussion here. A Union rather than Community body,32 Eurojust serves to promote coordination between Member States for the investigation and prosecution of serious crime. The case related to the recruitment of staff for the body and the linguistic knowledge required for a series of posts that had been advertised in the Official Journal.33 The details differed across various posts but, for most of them, knowledge of English, or English and French, was required, with an ability to work in other Community languages deemed an “asset”.34 For the position of librarian/archivist, however, no specific linguistic requirements were set down. And for all posts, irrespective of the substantive linguistic requirements specified, applications submitted in the language in which the advertisement was published had to be accompanied by an application form completed also in English; supporting documents were also required to be submitted in English. Spain’s claims were founded essentially in the domain of discrimination, which is rather ironic given its interventions in Kik in support of the limited OHIM language regime; no doubt the presence of Spanish in the OHIM regime but not in the Eurojust requirements explains its change of heart. Much of the Opinion discussed the questions on which the judgment subsequently turned, namely, admissibility of the claims vis-à-vis the general Community rules on standing before the Court (see Spain v. Eurojust, paras. 11–25 of the Opinion). On the substantive language issues, however, the Advocate-General took a refreshing approach, blending principle with pragmatism in marked contrast to the judgment(s) in Kik. The Community principle of non-discrimination on grounds of nationality was transposed convincingly to the Union (see paras. 32–33 of the Opinion); and the context of linguistic matters was set firmly in the language of “rights” (see especially paras. 34–38). It is not that the mechanism of justifying language limitations is absent, but, rather, that it proceeded from an openly declared foundation of respect for linguistic diversity. There was also a welcome recognition that the substance of any communication, rather than its form, should



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determine the applicable linguistic rules; and while appropriate limitations were again discussed in that context, they were set expressly against a principled backdrop of non-discrimination, lending a tenor of balance to the methodology that was painfully absent in the Kik judgments. There was also pragmatic recognition of the difference between external and internal communication, and the resultant permissibility or otherwise of linguistic restrictions (see paras. 43–45). Applying these conclusions to the facts of the case, the Advocate-General showed some deference to Eurojust’s own determination of its functionality requirements, and found that the rights of applicants were “impaired only to a limited extent”, bearing in mind “the duties associated with the posts concerned” (Spain v. Eurojust para. 71); the Advocate-General thus proposed annulment only of the requirement that applications for the post of librarian/archivist must be submitted in English, recalling the lack of any express requirement of competence in English for that post (para. 72). There was also, however, some vulnerability in the overall reasoning. While the Opinion stated clearly that the language regime of the Community – and, more particularly, Regulation 1/58 – applies equally to the Union (para. 30), it did not deal directly with the institutions/other bodies distinction on which Kik itself turned.35 If Regulation 1/58 was found not to apply to OHIM, it can be found similarly not to apply to Eurojust. The Community/Union distinction is not, here, the fatal one; rather, the institution/body division remains material. The Opinion does appear to draw from a more general principle of linguistic diversity, beyond the Regulation, which applies across the spectrum of EU entities (see especially para. 40); but when discussing the substance of the claims, a breach of “Regulation No 1” is again recalled (para. 68). And so, if the mindset of the Court of Justice had not evolved in the interim, there was no need for it to do so in this case either, had admissibility rules not settled the matter in any event. Finally, following on from these general themes of both language rights for individuals and the increasingly comprehensive Union impact on crime and security, the Commission proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union should be mentioned.36 The right to understand the “nature and cause of the accusation”, and the associated rights of (free) translation and interpretation, feature strongly throughout the proposal, with reference to Article 6(3) ECHR and relevant Strasbourg case law.37 In line with the standard of protection offered by the ECHR, it must be stressed that understanding rather than choice is the guiding linguistic standard. This formulation is neutral in respect to minority languages, since it neither requires nor precludes them from being languages the accused understand. But there is something of an oddity in Article 14 of the draft proposal: para. 1 provides that “all suspected persons are made aware of the procedural rights

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that are immediately relevant to them by written notification” – a “letter of rights”. Paragraph 2 goes on, however, to limit translation of this written notification into “all the official Community languages” – which may well discriminate against a minority language speaker who does not “understand” one of these languages, contra the neat presumption in paragraph 3 (“in all the official Community languages so as to be able to offer an arrested person a copy in a language he understands”). This breaches the standard of protection guaranteed by the ECHR, that which the Commission clearly is trying, at least, to assure. The proposal is still at an early stage;38 and so it is both possible and imperative that this potential impairment of rights can be rectified. The European Parliament recently, and wisely, proposed some amendments in this very context.39

A new dawn? It has already been observed that Articles III–433 and IV–448 of the Constitutional Treaty effectively reproduced Articles 290 and 314 EC respectively. Article 314 EC simply lists the single original language versions of the Treaty, namely the twenty official languages of the EU, and Irish. A post-Convention addition to Article IV–448, however, introduced a new procedure – perhaps somewhat inspired by the anomalous status of Irish but offering considerably less in substance: 2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.

This provision first emerged at intergovernmental negotiations in June 2004 (CIG 86/04, 25 June 2004), largely the result of mounting domestic pressure on Member States (particularly in Spain) to remedy the absence of any real consideration of minority (language) issues by the Convention. In October 2004, the following Declaration was attached to the final Treaty text: The Conference considers that the possibility of producing translations of the Treaty establishing a Constitution for Europe in the languages mentioned in Article IV–448(2) contributes to fulfilling the objective of respecting the Union’s rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article I–3(3) of that Treaty. In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.



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The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article IV–448(2) communicate to the Council, within six months from the date of the signature of that Treaty, the language or languages into which translations of that Treaty will be made.40

This conception of Article IV–448 contained a number of innovations. First, it denoted an implicit, but real, recognition that languages other than those recognised officially at EU level even exist in the Member States; it signalled also recognition that the EU and at least its primary law can, even should, be transmitted in these languages. This nod to linguistic diversity was somewhat limited by the requirement that such languages must have official status of some sort in the Member States, but this is hardly surprising when considered through a lens of political acceptance. Second, we see a delegation of the work of translation away from the EU itself. These Treaty translations would be devoid of legal effect, and so are of as much symbolic as practical import; but, if not centrally translated, there could otherwise have been serious implications for the uniform application of Union law. In other words, legal effect was sacrificed for the advantage of having the translated Treaty versions merely come into existence at all. By placing primary responsibility for the management of this system in the hands of the Member States, the Union function of “support” is strongly realised; moreover, political pressure to act within the six month time-frame, which expired in mid-2005, had to be directed domestically, not at the Union institutions.41 The time-frame also meant that the fate of the Declaration was not linked to the fate of the Treaty more generally. Third, and perhaps most crucially, we discerned in this initiative (and, see below, in the Court) a tentative detachment from the rigid “all languages, all equal” model which pins the EU language framework within a formalistic straitjacket hopelessly unsuited to the reality of EU language needs. Notwithstanding the official status of twenty languages within the EU, the institutions work on a variety of “linguistic levels”, sometimes using just one language for internal purposes, sometimes a limited number, and sometimes translating and interpreting into all twenty-three. Apart from basic provisions in Regulation 1/58, this multilevel operative reality is not really formally acknowledged or sufficiently provided for; but by preserving an equality of status, the complexity of language needs and language functions is ignored. The unique status of the Irish language had rested quietly for too long; the potential for imagination that it posits was essentially ignored. Article IV–448(2) was a less substantive compromise. But it did, at least, acknowledge that there are more language questions within the EU sphere (and within its remarkable blend of supranational and domestic concerns and competences) than a basic

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model designed originally for four languages could possibly accommodate. A creative exploration of other possibilities, other levels of use and of status, is therefore to be (cautiously) welcomed. It is not without risk, of course – a question returned to below. In keeping with the momentum generated by the successful inclusion of Article IV–448(2), but, again, in an exercise of fairly bizarre timing,42 two further political moves were launched after the signature of the Constitutional Treaty. In November 2004, Ireland launched a proposal to seek full official and working status for Irish.43 The initiative was launched in a (Maltese-influenced?) spirit of compromise and selectivity, however, highlighting certain legal measures only for translation for an initial four-year period (thus, legislation adopted jointly by the Parliament and Council, but not, for example, judgments of the Court of Justice), with a review to take place after that time period had elapsed. Ireland presented its proposal more formally at the General Affairs Council meeting on 13 December 2004. At the same meeting, and following what has been described as a “saga of poisoned philological, inter-regional and party-political disputes” (Verges 2005: 4–5), Spain also presented a memorandum requesting “official recognition of all languages with official status in Spain”.44 Curiously, though cleverly, the memorandum proposed amendments to Regulation 1/58, and not to the Treaty itself. Ireland proceeded on the same basis, but it is not at all clear that “true” official and working status can be effected in this way. Spain presented the terms of the status requested in some detail; in essentials, the EU functions sought for Basque, Catalan and Galician amount to the present and proposed status of Irish combined, but without the stipulation of a temporal review. Moreover, incorporating elements of Article IV–448(2) also, the memorandum stated clearly that “[t]he Spanish Government will underwrite the costs arising from the practical implementation of the changes sought in the language regime”, and that it was also willing to make translators and interpreters available. Again, then, we see a proposed merging of Union and Member State resources and facilities, but this in turn continues to raise questions on the intended legal outcomes of the resulting documents and the implications for the uniform effect of Community law. And as discussed above in the context of Spain v Eurojust, a formal rather than substantive dividing line between documents which require to be translated and those that do not is not entirely convincing, or desirable. Both requests were forwarded by the Council to the Permanent Representatives Committee (COREPER) for further examination.45 The Council decided that Irish would be an official EU language (with effect from 1 January 2007) along the lines of the terms sought in the proposals of the Government.46 But the results for Spain are more mixed: the (non-centralised and non-EU funded) translation and interpretation functions sought were agreed to, but without the



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label of “official” EU status per se for the languages themselves and indeed in a far more general sense than in respect of Spain specifically.47 This is why these critical developments can be welcomed only cautiously. Instead of a systematic and considered reform of the EU language scheme and its complex layers, the Member States merely tacked more layers on to an already fragile language structure. What distinguished the claims put forward by Ireland and by Spain? Why was the outcome so fundamentally different? The Spanish campaign achieved results for all of the Member States, which is probably a more acceptable result overall, but why was this not a sufficient response for Ireland also? Who will oversee and coordinate the new arrangements? And how do they fit with what we already know? For example, the Council’s June 2005 Conclusion provides in paragraph 5(c) that: Member States will be able to adopt a legal act providing that, if one of their citizens wishes to send a communication to a Union Institution or body in one of the languages [recognised by the Constitution of a Member State on all or part of its territory or the use of which as a national language is authorised by law], he or she shall send the communication to a body designated by that Member State. That body will send the Institution or body in question the text of the communication, with a translation into the language of the Member State referred to in Council Regulation No 1/1958. The same procedure will apply mutatis mutandis to the reply from the Institution or body in question. Where the Union Institutions or bodies have a fixed period of time in which to reply, that period will commence from the date on which the Institution or body in question receives the translation into one of the languages referred to in Council Regulation No 1/1958 from the Member State. The period will cease on the date on which the Union Institution or body sends its reply to the competent body of the Member State in the latter language.

What does this mean? Does it include a trade mark application to OHIM? Or a job application to Eurojust? How would such a conclusion work against the necessary time-limits set down in both processes? Must time limits then be extended for all? The Council ends its Conclusion merely by “invit[ing] the other Institutions to conclude administrative arrangements on this basis”, which is hardly helpful in the situations outlined above. Once again, therefore, a genuine innovation in EU language policy with potentially real implications for the rights and obligations of language speakers cannot easily be praised: there are simply far too many questions and not nearly enough answers. There are so many pieces now in the EU language jigsaw. It has become more than a mere shame that they have not yet been put together; a series of practical and legal uncertainties has been created and, as we saw so starkly with Kik, it will most likely require the persistence of individuals to attempt to have them resolved.

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Concluding remarks This brief excursion through recent years of EU language “policy” shows, on the one hand, that little has changed since the heyday of European Parliament momentum in the late 1970s and 1980s. Action on behalf of minority languages is still being “promoted”, even if the range of centralised EU ambition is increasingly more limited to language learning – critical, but insufficient – than at any time past. The legal basis now provided by the EC Treaty for initiatives in this regard is tempered by the constraint of requiring political unanimity. Among the numerous changes that would have been wrought by the Constitutional Treaty, however, this small but crucial adjustment may yet be one. It has been stressed that we can no longer conceptualise minority languages as simply those outside the official EU language framework. As the increasing use of a small number of functional languages, predominantly English, intensifies, the use and de facto status of other languages diminishes in turn. Perpetuating a myth of equality fails to provide a mechanism for contemplation of these “minority official” languages. Most fundamentally, however, there is still a complete lack of direction in contemporary EU language actions, a bewildering display of randomness (which can only mean chaos). The rhetoric of EU enlargement was all about linguistic diversity: the more, the very much merrier. But the subsequent reality has been more about a crisis of resources. While the Member States have introduced a more flexible language framework, which does positively reflect some genuine aspects of governance and citizenship, they have done so with such little guidance or systematic appreciation of the consequences that the envisaged gains are in danger of being cancelled out, and so we walk blindly further into Babel. And yet, at the same time, the Court of Justice had blessed a considerable reduction of linguistic obligations in non-institutional Community (and Union?) bodies. Passing the financial and administrative burdens to the Member States themselves, as the Council has done, does not sufficiently answer the concerns of the Community Courts nor, more critically still, does it displace the Court’s conviction that linguistic equality is not a general principle of Community law or an inherent aspect of nationality discrimination. If it is not, the innovation of the Council Conclusion seems ultimately pointless. There is, in short, no linguistic coherence in EU language planning. Or more accurately, there seems to be no planning at all. How can a situation in which Irish acquires enhanced status, Catalan acquires none, while trademark, patent and even Eurojust job applications must be submitted in fewer and fewer languages be seen as progress? How can this be a relevant, appropriate or even efficient language framework for an increasingly complex EU? The EU Commissioner with



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responsibility for multilingualism tells us that ‘[p]romoting multilingualism in the different Policies of the European Union, such as culture, education, communication and employment is at the centre of my objectives.’48 But this is not nearly comprehensive enough. We do not just need, as the Ebner Report suggested, an Agency for Linguistic Diversity and Language Learning. We need an EU Agency for Language Planning, which can take an overview of all linguistic needs and linguistic developments, and the complex interactions among them, and which can attempt to devise a more rational yet ideologically sound EU language scheme. Otherwise, the linguistic dimension of EU citizenship will have no meaningful substance. And virtually all EU language questions will become the stuff of “minority”.

Notes 1. This chapter is an updated version of “Recent Developments in the Status of (Minority) Languages within the EU Framework”, published in the (2004/5) European Yearbook of Minority Issues 373–388. 2. OJ 2004 C310/1. 3. Irish became an official language in January 2007, along with Bulgarian and Romanian, but its status is more limited in practice; this is discussed in detail later in the chapter. 4. See Council Regulation 1/58/EEC of 6 October 1958 determining the languages to be used by the European Economic Community, OJ 1958 B17, 385–386 (as amended and consolidated). 5. If a Member State has more than one official language, selection of the appropriate language is, according to Article 8, governed by the state’s internal language rules (for example, certain languages may be required to be used in different geographical regions), but the presumption remains that only official EC languages are relevant. 6. For the details of the language rules applicable here, see Articles 29–31 of the Rules of Procedure of the Court of Justice (OJ 2003 C193/1, as amended, for purposes of EU enlargement, by Council Decision of 19 April 2004, OJ 2004 L132/2). The same language rules apply (for the most part) in the Court of First Instance (see Articles 35–37 of the Rules of Procedure of the Court of First Instance (OJ 2003 C193/2, and OJ 2004 L132/3). 7. See, for example, Case C-33/97 Colim v Biggs [1999] ECR I-3975 and Case C-366/98 Geffroy v Casino France [2000] ECR I-6579. 8. Decision No 2241/2004/EC of the European Parliament and Council, 15 December 2004, on a single Community framework for the transparency of qualifications and competences (Europass), OJ 2004 L390/6. See, with particular reference to the language portfolio, Article 8 and Annex V of the Decision; see also, the Europass portal at .

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9. As noted above, see currently Articles 290 and 314 EC, and Regulation 1/58. Despite hopes and attempts to the contrary, the Constitutional Treaty did not contain enhanced protection for the rights of minorities, apart from a brief (and last-minute) reference in Article I–2, in the context of respect for human rights “including the rights of persons belonging to minorities” as a Union “value”. 10. See Article 151 EC and Article III–280 of the Constitutional Treaty. See generally, Nic Shuibhne (2002: Ch. 4) and the contributions in Craufurd Smith (2004). Notwithstanding the relative weakness of the permitted measures that can be adopted under Article 151 – i.e. incentive measures excluding harmonisation, and recommendations – the Council is compelled at present to act unanimously. If the ethos of the Constitutional Treaty on this point is ratified, however, this requirement will be removed, the implications of which are discussed further below. 11. See the Arfé Resolution (1981) on a Community Charter of Regional Languages and Cultures and on a Charter of Rights of Ethnic Minorities, OJ 1984 C287/106; Arfé Resolution (2) (1983) on Measures in favour of Minority Languages and Cultures, OJ 1983 C68/103; Kuijpers Resolution (1987) on the Languages and Cultures of Regional and Ethnic Minorities in the European Community, Doc. A2-150/87; and the Killilea Resolution (1994) on Linguistic and Cultural Minorities in the European Community, OJ 1994 C61/110. 12. European Parliament Resolution (2001) on Regional and Lesser Used Languages, OJ 2002 C177E/334. On the European Year of Languages (2001), see Decision 1934/2000/EC of the European Parliament and Council, 17 July 2000, OJ 2000 L232/1. 13. As a consequence of European Parliament lobbying, a budget line for funding dedicated to minority language projects was established in 1982. It was not, however, authorized by a legislative act – recalling that the EC Treaty provision on culture was not inserted by the Treaty of Maastricht until 1993, there was no suitable legal basis available. This continued until Case C-106/96 United Kingdom and others v Commission [1998] ECR I-2729, where the Court of Justice held that every ‘significant’ EC expenditure must be grounded in the prior adoption of a legislative act. As a direct consequence of that decision, minority language funding was no longer provided via its dedicated budget line and continues to be provided on an ad hoc basis only. The unanimity requirement in Article 151 EC, mentioned above, and not the continued absence of a legal basis per se, is the key difficulty on this point since, thus far at least, it has not been possible to secure the political support of all the Member States. As already noted, the amendments that originated in the Constitutional Treaty could change things quite markedly in this context. 14. OJ 2000 C 364/1. Article 22 of the Charter provides that “[t]he Union shall respect cultural, linguistic and religious diversity”. But it is far from clear how the Parliament envisages “implementation” of this rather vague statement. 15. At the time of writing, fourteen Member States have both signed and ratified the Charter (Austria, Cyprus, Czech Republic, Denmark, Finland, Germany, Hungary, Luxembourg, the Netherlands, Slovakia, Slovenia, Spain, Sweden and the United Kingdom); five have signed but not yet ratified (France, Italy, Malta, Poland and Romania) and the remaining eight (Belgium, Bulgaria, Estonia, Greece, Ireland, Latvia, Lithuania and Portugal) have done neither.



Chapter 6.  EC law and minority language policy 141

16. Document A5-0271/2003 Final. 17. COM (2003) 449 final; see the enabling Council mandate in its Resolution of 14 February 2002, OJ 2002 C50/1. 18. A number of contributions to the II Mercator International Symposium Europe 2004: A new framework for all languages? held in Tarragona, February 2004, addressed and evaluated different aspects of this question – see the index, which also contains links to abstracts and complete texts of papers, at http://www.ciemen.org/mercator/simposis/2004ML/ponenciesgb.htm. 19. See Nic Shuibhne 2004, Footnote 59 and accompanying text. 20. According to Article 3 of the Constitution of Cyprus, Greek and Turkish are the official languages of the Republic. The provision goes on to set out detailed arrangements for the official use of both languages. The attachment of special linguistic concessions to accession is not unprecedented, recalling the unique status in the Union of the Irish language. 21. See Council Regulation 930/2004/EC of 1 May 2004 on temporary derogation measures relating to the drafting in Maltese of the acts of the institutions of the European Union, OJ 2004 L169/1. 22. Even a cursory search at http://www.eu.observer.com, for example, reveals headlines such as “Translation errors in Polish EU Constitution to delay ratification” (20 January 2005), “EU language bills rocket” (14 January 2005), “Translation problems delay crucial EU financial laws” (10 May 2004) and, most dramatically, “EU translation problems cost lives, says UK” (28 July 2004). 23. See Nic Shuibhne 2004: 1109–1110 for a discussion of some of the (limited) proposals put forward to the Convention, none of which met with any success in terms of their finding their way into the Convention’s ultimate draft. 24. See, for example, the references in Footnote 8 in respect of the free movement of goods; on the free movement of persons, see Case C-274/96 Criminal Proceedings against Bickel and Franz [1998] ECR I-7637 and Case C-281/98 Angonese v Cassa di Risparmio di Bolzano[2000] ECR I-4139. For further discussion of EU citizenship, see the contribution to this volume by Peter Hilpold. 25. There are four Kik cases in all: first, Case T-107/94 Kik v Council and Commission [1995] ECR II-1717 and, on appeal, Case C-270/95, [1996] ECR I-1987; these cases relate to the standing of the applicant rather than the substance of the language questions. Case T-120/99 Kik v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2001] ECR II2235 and Case C-361/01P Estate of Christina Kik deceased v OHIM [2003] ECR I-8283 are of more relevance here. For detailed discussion of all four judgments, see Nic Shuibhne 2004. 26. Regulation 40/94/EC on the Community trade mark, OJ 1994 L11/1, Article 115. 27. Ibid., paras. 4–7. 28. See the judgment in Case C-361/01P, para. 83. 29. See, in particular, Case C-361/01P, paras. 83–95.

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30. On this point, see Case C-361/01P, paras. 88–92. 31. Case C-160/03 Spain v Eurojust [2005] ECR I-2077. 32. See Council Decision 2002/187/JHA, OJ 2002 L63/1. 33. See OJ 2003 C 34A/1. 34. For details of the various posts and associated linguistic requirements, see Spain v Eurojust, para. 7 of the Opinion. 35. There is some consideration of the non-institutional status of Eurojust in the Opinion (paras. 20–21), but this is in the context of the admissibility of the action and not the application of Regulation 1/58. 36. COM (2004) 328 final; I am grateful to Bruno de Witte for this point. 37. See, in particular, paras. 35–38 and 62–70 of the Explanatory Memorandum. 38. The progress of the legislative procedure can be tracked at http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=190771. 39. See the European Parliament legislative resolution on the proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, OJ 2006 C33E/159. 40. Addendum 2 to CIG 87/04 REV 2, Brussels, 25 October 2004, Declaration No. 29 on Article IV–448(2), thereafter published in OJ 2004 C310/463. 41. There appears to have been a widespread awareness of and interest in the realisation of Article IV–448(2); in the Scottish Parliament, for example, a motion considered ‘that the translation of the treaty into the Gaelic and Scots languages would be a symbolically important means of demonstrating a continued commitment to the long-term future of these important elements of Scottish culture; considers that any such translations should be made available prior to the proposed referendum on the treaty in order to allow voters to refer to the treaty in their chosen language, and accordingly calls on the Executive to make representations to Her Majesty’s Government with a view to having the translations completed.’ See Business Bulletin No. 176/2004, Section F, 30 November 2004, available at http://www.scottish.parliament.uk/business/businessBulletin/bb-04/bb-11-30f.htm. This does not mean, however, that awareness and interest were converted into real results; certified translations of the Treaty (in Basque, Catalan and Galician) had been provided only by Spain (or more accurately, translations provided by the language communities themselves presented ‘via’ Spain, acting as the actual EU Member State): see Verges 2005. Several queries by e-mail to both the Council and Commission, as to whether other states had used the mechanism or not, proved fruitless; incidentally, the Commission’s pre-formatted on-line query form offered at that time a list of twenty languages only and, in contravention of Article 21 EC, did not include Irish. The author pointed this out to the Commission also but no response was received. 42. Or, at least, bizarre timing from the perspective of making the EU constitutional reform processes more open and deliberative; looking instead to national referendum battles in regard to ratification of the new Treaty, perhaps not so bizarre after all.



Chapter 6.  EC law and minority language policy 143

43. The proposal was first presented at a meeting of the Permanent Representatives Committee (COREPER); see the press release on 24 November 2004 from the Department of Foreign Affairs, at http://foreignaffairs.gov.ie/Press_Releases/20041124/1639.htm. 44. The Spanish memorandum detailing its proposals can be accessed at http://www.es-ue.org/ Documents/Memorandum-LenguasCCAA-10º(DEFINITIVA)-EN-10dic04.DOC. 45. See Council of the European Union, General Affairs, Brussels, 13 December 2004, Press Release 15460/04 (Presse 343), 10. 46. Council Regulation 920/2005/EC of 13 June 2005, OJ L 156/3. 47. Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union, OJ 2005 C148/1. For further discussion of the official use of additional languages, see the contribution to this volume by Antoni Milian-Massana. 48. See http://ec.europa.eu/commission_barroso/orban/index_en.htm.

References Craufurd Smith, Rachael, ed. 2004. Culture and European Union Law. Oxford: Oxford University Press. de Witte, Bruno. 2004. “Language Law of the European Union: Protecting or Eroding Linguistic Diversity?” Craufurd Smith 2004. 205–241. Nic Shuibhne, Niamh. 2002. EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights. The Hague: Kluwer Law International. Nic Shuibhne, Niamh. 2004. Case comment on Kik v Office for Harmonisation in the Internal Market. Common Market Law Review 41: 4.1093–1111. Verges, Anna. 2005. “Spain Before the Referendum”. The Federal Trust for Education and Research: EU Constitution Newsletter, February 2005, available at http://www.fedtrust.co.uk/ admin/uploads/News_Feb_05.pdf.

chapter 7

The protection of linguistic diversity through Article 22 of the Charter of Fundamental Rights Xabier Arzoz

This chapter offers a preliminary legal assessment of the conditions and limitations under which linguistic diversity is protected by Article 22 of the Charter of Fundamental Rights. It is argued that Article 22 is a minority protection clause, since it addresses the most basic protection needs of minorities. It is further argued that Article 22 provides cultural, religious and linguistic minorities with an enforceable right to non-interference on the part of the European Union in order to preserve their minority characteristics. This minimum form of protection is consistent with the weak formulation of Article 22.

European integration is a process full of ambivalences. On the one hand, it can be seen comparatively as the most successful case of supranational integration (which has happened in the traditionally most-divided continent).1 On the other hand, a strong sense of statehood characterizes the European integration project. Some national strategies may have been moderated by virtue of European integration, but nation-state interests still play the dominant role in the process and, moreover, Member States are certain to retain the role for a long time still. Paradoxically, it seems that the dominance of nation-state interests tends to be even more evident in a supranational organisation like the European Union than in classic international organisations. Supranational organisations aim primarily at binding rules and common policies. It has been argued in this respect that “within European integration it is more difficult to escape to watered down solutions which stand somewhere between political and quasi-legal instruments,” so “an initial commitment to minority issues seems to be, politically speaking, more difficult than in a traditional international context” (Toggenburg 2000: 1).

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The introduction of an explicit EU commitment to respect for the national identities of the Member States (Article 6(3) EU) highlights the enduring statecentred vision of Europe. The drafting and scope of Article 22 of the Charter of Fundamental Rights may further illustrate the above-mentioned ambivalences. The Member States require the Union to respect their national identities, whatever should be meant by that, but they feel uneasy about imposing a similar requirement concerning respect for subnational identities or for minorities. Indeed, the emergence and shaping of minority protection has proven subject to more difficulties in the context of the European Union than in other European international organisations (Council of Europe, OSCE). In a classic international organisation, a state need not, and often cannot, prevent the elaboration of a legal instrument for the protection of minorities which at the end of the process will be open to signature and ratification. However, in a supranational organisation, a Member State willing to prevent any development which it considers inconsistent with its own state tradition or ideology will try, and will often have enough power, to veto an undesired development. The European Union first addressed the issue of minorities when it assisted in the transformation of the post-Communist states from 1989 onwards, with the aim of preparing its own enlargement toward Central and East Europe. But although it may have been to some extent relevant and influential to developments in the Central and Eastern European countries, the concern for minority protection achieved a political but not legal status within the EU legal order, and it was confined to the external influence area of the European Union. The need for “respect for and protection of minorities” was not integrated into the body of EU “hard law”2 and was produced only for the accession of the Central and East European states.3 For the time being, it remains uncertain how seriously and consistently the European Union will address and monitor the question of minorities in the post-enlargement period, and how the new Member States will react to eventual renewed efforts to impose stronger minority protection standards with which many of the “old” Member States do not comply.4 If conflicts involving minorities prove manageable under the present combination of European (both EU and non-EU) monitoring and domestic protection schemes (perhaps with some amendments), the European Union will probably maintain its traditional restraint towards minority protection norms and it will support that restraint rhetorically by appealing to the principle of subsidiarity. Alternatively, if tensions arise, the contradictions in the EU’s selective approach will be much more acute. Leaving aside the non-discrimination principle, which is not a specific minority protection clause, the first formulation of some form of minority-related protection in EU law is Article 22 of the Charter of Fundamental Rights. Article 22 states: “The Union shall respect cultural, religious and linguistic diversity.”



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However, minority rights activists, non-governmental organizations and some members of the Convention supported the inclusion of a specific provision on minorities (see below, and Stubbs 2000). As a matter of fact, the word “minorities” does not appear within Article 22, but in the less delicate anti-discrimination provision (Article 21). Most probably for this reason, many commentators have explicitly disregarded Article 22 as a minority protection provision5 or have interpreted it as a multicultural heritage provision reminiscent of Section 27 of the Canadian Charter of Rights and Freedoms.6 In standard treatments or commentaries, Article 22 is regarded from a very sceptical perspective: according to several scholars, it would be “a rather weak provision, which appears to confer positive rights neither on individuals nor groups” (Wallace & Shaw 2003: 243);7 “the commitment to protect linguistic and cultural diversity does not translate easily into concrete minority protection standards” (de Witte 2004b: 115); its character as a fundamental right provision is even contentious (Grabenwärter 2001: 6; Campins Eritja 2002: 109–110); and it is said of the Constitutional Treaty as a whole that it “does even less than the Framework Convention on the Protection of National Minorities which so far was thought to be the low point” (Skutnabb-Kangas 2004: 12). Many extended articles on EU minority protection or on linguistic diversity devote very few lines to the analysis of the provision, as if it were considered to be of minor relevance. Before a silent consensus establishes this provision as merely rhetorical, we shall explore the potential for constitutional orientation stemming from it. Orientating the legal order is supposedly one of the main tasks of a constitution, especially in the case of a bill of rights. This paper offers a preliminary legal assessment of the conditions and limitations under which linguistic diversity is protected by Article 22 of the Charter of Fundamental Rights. The side-effects that the commitment to cultural and linguistic diversity may have on various fields of EU law are beyond the limited scope of this paper.8 Although it focuses on the strengths and limitations of Article 22, this paper seeks to contribute to the elaboration of an answer to the question of whether the Constitutional Treaty advances or hinders the protection of linguistic diversity.

The original intention behind Article 22 Article 22 appeared late in the drafting process of the Charter: it was not included in the initial list of rights formulated by the Presidium, a body with a coordinating role in the Convention (the Convention had been charged by the European Council with the elaboration of the Charter).9 The Presidium proposed it in CHARTE 4470/00, CONVENT 47 of 14.09.2000. From then onwards, the formulation of

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Article 22 proposed by the Presidium remained unchanged until the text of the Charter was finalised and approved by the Member States and the institutions of the European Union. Nevertheless, neither the appearance of Article 22 nor its inclusion in the Charter’s chapter on equality was casual. The European Bureau for Lesser Used Languages (an independent NGO aiming to promote the autochthonous, lesser used languages of the Member States) suggested the inclusion of the following article: 1. European Citizens have the right to maintain and develop their own language and culture, in community with the other members of their group, as an expression of the cultural and linguistic diversity that is a common heritage of Europe. 2. Within its spheres of competence, the European Union shall promote the effective exercise of this right. 3. No policies and measures of the European Union shall be adopted or applied in ways that are detrimental to the linguistic diversity of Europe. To justify its proposal, the European Bureau argued that the principle was already established in other documents binding the Member States of the European Union.10 Similarly, a number of members of the Convention proposed the inclusion of provisions on the protection and/or the equality of minorities. Thus, Peter Altmeyer proposed a new article to be inserted after Article 20 concerning the rights of minorities, with the following text: “The identity and the rights of minorities and their members, as well as linguistic and cultural diversity in the European Union, shall be respected and protected.” The text of a new article proposed by Ingo Friedrich was similar: “The identity and the rights of historically-rooted and long-established minorities and their members, as well as linguistic and cultural diversity in the European Union, shall be respected and protected.” Some members even proposed new articles on the protection of minorities that underlined the collective character of minority rights. Reinhard Rack proposed the following new article:11 1. Members of any national, ethnic, cultural, linguistic, religious or other minority have the right also to live their traditional distinctiveness collectively and in public, to assemble freely and peacefully with others and associate freely with others and to settle their own internal affairs. 2. The Union shall work to promote the tradition and cultivation of minority rights. (Amendment 597, CHARTE 4332/00)



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Finally, a far-reaching proposal was launched by Jens-Peter Bonde: a new right on minorities’ rights to be included in the Charter in the chapter concerning civil and political rights, which in practice meant incorporation by reference of whatever international law standards applied to the protection of minorities, regardless of the binding or nonbinding character and of the ratification or not of the corresponding international agreements by the Member States (Amendment 604, CHARTE 4332/00 ADD 2). At the same time, and apart from proposals for provision for the protection of minorities, some members of the Convention also attempted to extend the list of discrimination grounds to cover membership in various kinds of minority, not only of a national minority, as established in the initial list of rights elaborated by the Presidium. Andrew Duff proposed an extensive definition of minority as “national, regional or cultural minority” (Am. 434). Similarly, in Amendment 439 Gunnar Jansson, Tuija Brax and Paavo Nikula proposed the replacement of “national minority” with a more explanatory version (“ethnic, religious or linguistic minority”), in order to provide a more comprehensive picture of the kinds of minority actually in existence and to come into line with the wording of Article 27 ICCPR. Some members proposed either new paragraphs or new articles dealing with the equality of minorities, in order to underline the specific needs for protection of minorities against discrimination. Win Griffiths proposed a new paragraph in the existing antidiscrimination provision, with the following content: “Persons belonging to minorities shall have the right to maintain and develop their own language and culture” (Am. 435). Einem and Holoubek proposed a similar article, which, furthermore, set the Union under a positive obligation of eliminating “inequalities or discrimination” with regard to linguistic and ethnic minorities (Am. 470). José Barros Moura and Maria Eduarda Azevedo proposed a new article that combined respect for the national and regional identities of Member States and for their cultural and linguistic diversity with a more specific Union obligation to support minority languages (Am. 496). It appears safe to conclude that Article 22 remains in a dialectic relationship with all the proposals mentioned, that it is a synthesis between the positions of those willing to promote a comprehensive and even sophisticated minority protection scheme and those finding it inconvenient to open such a debate (rather than an eventual position hostile to it). There seems to be some evidence that the formulation of Article 22 jointly with the introduction of the discrimination ground “person belonging to a national or ethnic minority” into Article 21 are an ersatz, functional replacement for the demand of some Convention members for serious consideration of the minority issue. For a qualified insider, the vice president of the Convention and member of the Presidium Guy Braibant (2001:159), Article 22 is “une expression atténuée de la reconnaissance des minorités.” Similarly,

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another commentator affirms that Article 22 “represents the – modest – outcome of the struggle for a specific provision for the protection of minorities.”12 Article 22 does aim at protecting to some extent the vital needs of minorities, although for a number of reasons it does not mention them by name: the introduction of an explicit minority protection would have involved a difficult discussion of several legal models, and the Convention had a quite specific mandate and a rather short time to fulfil it (Hölscheidt 2003: 293–294).

The sources of Article 22 Since the Convention charged with drafting the Charter was mandated to make fundamental rights more visible within the European Union, one might believe that no provision of the Charter is entirely new. Still, the “visibility” task is intentionally ambiguous. Fundamental rights in the European Union were previously hardly explicit. The fundamental rights provisions included in the Charter could be considered at the outset to form part of the actual or potential acquis communautaire of fundamental rights: the EC/EU Treaties, the European Convention of Human Rights (ECHR), the jurisprudence of the European Court of Justice (ECJ) and of the European Court of Human Rights (ECtHR), and the constitutional traditions common to the Member States. Nevertheless, codifications tend by nature to produce many innovative outputs, either of substantive or of normative character. On the one hand, gaps are likely to emerge in any codification: these gaps tend to be corrected on the basis of systematic and teleological considerations, that is, through the generation of complementary new rules. On the other hand, the systematisation of written fundamental rights provisions may put the protection of some vital interests under a new and more favourable light, gathering synergies and subsequently increasing the whole scope of protection. The previous acquis communautaire in matters regarding fundamental rights did not explicitly acknowledge or include respect for linguistic diversity (see, for example, Hilpold 2001; Lenaerts 1991). It must be noted that the rather punctilious Explanations to the Charter, written under the authority of the Presidium, focus on respecting cultural and religious diversity, and are rather vague in order to provide a specific background reference for respecting linguistic diversity: This Article is based on Article 6 of the Treaty on European Union and on Article 151 (1) and (4) of the EC Treaty concerning culture. It is also inspired by Declaration No. 11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional organisations.



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On the basis of that explanation, one could probably argue that cultural diversity also contains a linguistic component when it exists, or that linguistic diversity now respected derives from or is just a reformulation of the “respect for national identity of the Member States” (Article 6(3) EU),13 but the fact is that Community law had not provided such an explicit guarantee on the matter before. Neither Article 6 EU nor Article 151 (1) and (4) EC mentions the idea of linguistic diversity. Indeed, it is difficult to derive respect for linguistic diversity from the “constitutional traditions common to the Member States” or from an international human rights standard. Above all, the actual meaning of “respect for linguistic diversity” is unclear. If tolerance of the use of minority languages in private activities is the intended meaning, it is clear that all Member States are in compliance; otherwise, state measures having the effect of preventing the use of a minority language in private activities would be in breach of a number of well-established basic individual rights (de Varennes 2001: 9). But if “respect for linguistic diversity” refers to the extent to which state authorities must provide services or respond to individuals’ linguistic preferences, the situation appears to be quite different. On the one hand, we cannot ignore the absence of signature and/or ratification of the two principal instruments, the Framework Convention for the Protection of National Minorities and the European Charter of Regional or Minority Languages, by some Member States (although these states are increasingly in the minority of Member States)14 and the important differences in the constitutional traditions among the Member States. On this basis, it can be argued that a European common standard does not exist.15 On the other hand, it seems that some common standards are slowly emerging. This is at least what one leading expert on international language rights (de Varennes 2001: 19) believes: Despite of a degree of hesitancy in some milieus, there does appear to be a growing legal acceptance in Europe that States have a positive obligation to provide public services and respond in the non-official or minority language preferred by individuals in “appropriate” circumstances such as where the numbers and geographic concentration of the speakers of a minority language and the State’s resources make it a viable option.

Irrespective of whether a European standard is or is not in process of emerging, it must be noted, first, that the European Court of Justice has admitted that it is not legally necessary that a would-be general principle of law be shared by all Member States nor be drawn from an international instrument which all Members have ratified.16 There is, therefore, no legal obstacle to the ECJ’s drawing on the Framework Convention for the Protection of National Minorities or on other international instruments in developing general principles of law regarding the protection of minorities.17 Second, the Charter draws inspiration from

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some international treaties that have not been ratified by all the Member States. Interestingly, Article 21(1) of the Charter includes, amongst the discrimination grounds it prohibits, discrimination on the ground of “genetic features”, a ground of discrimination whose prohibition is not based on Article 13 EC or on the corresponding Article 14 of the European Convention on Human Rights, but, as the official explanations to Article 21 acknowledge, on Article 11 of the European Convention on Human Rights and Biomedicine, which even now has not yet been ratified by all Member States.18 The official explanations remain silent on this point. They do not refer to any eventual common tradition nor to any eventual international standard. If the explanations had referred not to Article 6 EU, for instance, but to some of the various Resolutions of the European Parliament on minorities or regional languages in the European Union,19 the commitment to respecting linguistic diversity would have been given a less ambiguous profile. Without this kind of unequivocal reference, some might feel that the Convention has merely delivered a new essentially rhetorical provision enhancing the legitimacy of the European Union vis-à-vis national identities instead of providing a specific individual or collective safeguard. We should note, however, that bills of rights tend not to contain empty clauses: the statement of a bare principle is sufficient to raise standards that might discourage the government from actions to which it might otherwise be inclined. Therefore, constitution makers may be content to insert a bare principle “spaciously, if ambiguously, in order to allow for its expansion as the need might arise and in order to avoid the controversy that detail or explanation might provoke” (Levy 2001: 93). To establish whether this view is justified, let us now analyse the legal character of Article 22.

Defining the legal character of Article 22 as a minority protection clause As Article 22 guarantees respect for linguistic diversity, the first question that arises immediately is, what is diversity? Linguistic diversity and cultural diversity, which are both guaranteed by the provision, seem to overlap partially, given that language plays an important part in culture. Therefore, linguistic diversity is, when it exists, a qualified part of cultural diversity.20 Notions like pluralism and diversity are increasingly used in the political and legal discourse in order to legitimise modern democracies, but they never achieve a precise meaning. At least this much is evident: diversity is the opposite of uniformity. Since the Union proclaims “United in Diversity” as its motto in Article I-8 of the Constitutional Treaty, it should be clear that diversity within the Union is not only perfectly consistent with being united through the Union, but also constitutionally required.



Chapter 7.  Article 22 of the EU Charter 153

Consequently, linguistic diversity should be the opposite of linguistic uniformity. But beyond this statement, the notion of linguistic diversity itself provides no further information on the extension, quality or conditions of that diversity. On its own, the wording of Article 22 does not clarify whether it means linguistic diversity among the Member States or also diversity among and inside the Member States.21 A range of considerations must go into interpreting the scope of the provision. Unlike general notions such as pluralism and diversity, linguistic diversity refers to a more defined object: ideas and beliefs may in theory be unlimited and undetermined because they can be reworked and combined ad infinitum to produce new ones; but, since languages are a means of communication,22 there is always a defined number of languages and linguistic communities in use within a given territory. In other words, depending on our definition of “linguistic diversity”, we can put a figure (a certain number of languages) on the intended scope of protection. The argument that Article 22 would not protect individual languages and cultures, but diversity of languages and cultures as such (Nettesheim 2002: 39), does not seem convincing, and it appears to contradict the UNESCO Universal Declaration on Cultural Diversity (2001).23 Linguistic diversity cannot exist independently of a finite number of individual languages. If we compare it, for example, with the concept of freedom of expression, we find that freedom of expression does not aim at protecting individual ideas as such, but the free communication of ideas, thereby facilitating the building of a democratic and representative government and allowing the self-development of individuals. For that purpose, every single idea or opinion expressed falls within the scope of freedom of expression. The crucial question concerning Article 22 turns out to be the extent to which it is intended to guarantee diversity, that is, how broadly the notion of linguistic diversity is meant in this context. There are significantly different options here. Hypothetically, Article 22 could refer: (a) to the 23 “languages of the Treaties”/ “languages of the Constitution” only, as defined in Articles 314 EC, 53 EU and III-128 and IV-448(1) of the Constitutional Treaty; (b) or, apart from them, also to any other languages which enjoy official status in all or part of the Member States’ territory, in the sense of Article IV-448(2) of the Constitutional Treaty; (c) or, apart from the above-mentioned, also to the so-called minority and regional languages spoken within the European Union, irrespective of their legal status; or (d) to any language actually spoken within the borders of the European Union, including the languages of immigrant groups. The main argument favouring the most restrictive option (a) is that Article 6 EU is referenced in the official explanations of Article 22. If Article 6 EU is seen as the source of Article 22,24 respect for linguistic diversity should be interpreted

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in the context of “respect for national identity of the Member States”. It would appear to be consistent with that background that the wording of Article 22 limits its applicability to the nation-states’ interests and also to respect for languages with national status. Nevertheless, the arguments in favour of extending the scope of the linguistic diversity clause to languages other than the EU official languages seem more convincing for the following reasons. First, the explanations to Article 22 invoke Article 151 (1) and (4) EC. If Article 151(1) EC has been explicitly considered as also providing the background for Article 22, it seems that “respect for linguistic diversity” should have a double complementary dimension: the national and the regional linguistic diversity dimensions.25 In this sense, Article 22 would provide a second counterpoint to a would-be “European identity”, the first counterpoint being “respect for national identity” (Article 6 EU).26 This second counterpoint to a European identity would be incorporated through the implicit recognition of “other group identities”, be they regional, ethnic or religious minority identities. Second, the longstanding policy objectives of the EU institutions also militate against a restrictive approach to linguistic diversity. Concern for linguistic diversity within EU soft law or funding programmes was never meant to be restricted to EU official languages or to languages with “national” status (see Nic Shuibhne 2002, de Witte 2004: 236–241). As the Commission has recently stated in its Action Plan for 2004–2006, Promoting Language Learning and Linguistic Diversity,27 “the mainstream European education, training and culture programmes are already accessible to speakers of all languages, whether ‘official’ languages or regional languages, minority languages, languages spoken by migrant communities, or sign languages.”28 This Action Plan purports to promote the acquisition and augmentation of linguistic skills by EU citizens and one of its slogans is “Mother tongue plus two other languages”. Although cultural aspects are also taken into consideration, the main objective pursued through the improvement of linguistic skills is the EU’s economic competitiveness. Nevertheless, despite the main economic focus, it is interesting to note that the range of languages on offer “should include the smaller European languages as well as the larger ones, regional, minority and migrant languages as well as those with ‘national’ status, and the languages of our major trading partners throughout the world” (Section 1, I.6). Under the significant title “An Inclusive Approach to Linguistic Diversity”, the Action Plan argues for continuation in this direction, and moreover that “in the longer term, all relevant Community programmes and the Structural Funds should include more support for linguistic diversity, inter alia, for regional and minority languages, if specific action is appropriate” (1, III.1). In a rare principled approach, it states: “Linguistic diversity is one of the European Union’s defining features. Respect for the diversity



Chapter 7.  Article 22 of the EU Charter 155

of the Union’s languages is a founding principle of the European Union” (1, III.1). Perhaps the most surprising element of that Communication is the statement that “[n]ational and regional authorities are encouraged to give special attention to measures to assist those language communities whose number of native speakers is in decline from generation to generation, in line with the principles of the European Charter on Regional and Minority Languages” (1, III.1). This is odd, because, as was already pointed out, this Charter is not even mentioned in the Charter of Fundamental Rights and it has not been ratified by all Member States. Third, to state the obvious, the Charter of Fundamental Rights is nothing more and nothing less than a bill of rights. Fundamental (or civil) rights and freedoms are legal instruments developed for the protection of certain vital interests against empirically well-documented tendencies of governments and dominant groups to oppress. Whenever there is a vital need of protection, it tends, sooner or later, to be pushed by the political process into a bill of rights.29 If a provision such as Article 22 has been included in the Charter, it will be evident that the drafters believed there was some vulnerable value or interest in need of protection. So we should ask what the vital need of protection is in this case. The key word of Article 22 is “diversity”. The idea underlying the notion of diversity, like the notion of pluralism, is the coexistence of majority and minority (or minorities) (see also Hölscheidt 2003: 295). In this sense, it is wholly coherent that Article 22 follows Article 21, that is, the principle of diversity coming to complement the principle of nondiscrimination.30 That the principle of nondiscrimination needs to be complemented by the principle of preserving the characteristics of minorities has been acknowledged by international human rights instruments31 and case law. The Permanent Court of International Justice stated in the Minority Schools in Albania case:32 These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority.

Guaranteeing diversity means recognising that the minority can preserve its characteristics. Since minorities are susceptible to the whims of the majority, “to the potential for disadvantageous or oppressive and unfavourable measures being exercised by the state or imposed by the behaviour of the majority,” they require special protection, a minimum guarantee of their cultural, religious and linguistic survival (de Varennes 1996: 154). Persons belonging to majority languages, cultures or religions do not need to be specifically protected: they do not have the same risk as minorities have, of having another language, culture or religion imposed on them. In case of an interference with the exercise of their freedom,

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their individual rights are considered to be enough to provide them with a remedy. Particularly, endangered languages are vulnerable to decline and to extinction. Therefore, if the Union guarantees linguistic diversity, it means that neither a language (or culture) nor a group of languages (or cultures) can be considered, by law or in practice, the language (or culture) or the languages (or cultures) of the Union. In this sense, it is not an issue of differentiating according to official or national status, but of protecting numerically smaller against numerically larger languages, lesser-used against wider-used languages.33 The idea of the existence of less-favoured vital needs requiring protection is supported by three provisions following Article 22 within Title III (Equality) of the Charter, which specifically endeavours to protect the rights of the child (Article 23), the elderly (Article 24) and persons with disabilities (Article 25). In contemporary minority law, one of the most controversial issues concerns whether minority rights should be recognised only in the case of the so-called “autochthonous” minorities or also in the case of immigrant groups (the so-called “new minorities” in contraposition to the “old”); and if so, what “level” of rights should be included in that recognition. Certainly, European minority rights standards focus on minorities historically settled in a territory. But the Charter does not contain any evidence coming in support of a restriction of the scope of protection. A protection provision cannot be restrictively interpreted. On the contrary, the general terms used by the Charter advocate the extension of the protection to any cultural, linguistic and religious minority present on the European territory. Consequently, it would be only the numerical inferior condition, within the EU, of a cultural, religious or linguistic minority which triggers the protection of Article 22. Who are the protected minorities? In absolute terms, no individual linguistic community prevails in the EU: in this sense, all linguistic groups could be regarded as “minorities” from an EU perspective. The most widespread mother tongue (German) is spoken by less than 25% of EU population. However, this perspective will seem rather abstract. In the context of the EU, what matters is not the absolute number of mother-tongue speakers, but the number of speakers. English is spoken as a mother-tongue or second language by nearly 50% of the EU population. But even this figure does not capture the growing transnational role of English. This situation leads, among other problems, to a major communicative inequality among speakers (politicians, lobbyists, scholars and so on).34 Consequently, it would seem that, sooner or later, all languages except English should need, and should enjoy, the special protection of Article 22. From the previous reasoning, the claim that Article 22 is not a minority protection clause sounds rather aprioristic. It is true that it does not refer explicitly to any kind of minority rights, either individual or collective (I discuss below the



Chapter 7.  Article 22 of the EU Charter 157

protection that it does provide), but it does address the issue of minorities in that it addresses the most basic protection needs of persons belonging to minorities.35 The view that Article 22 covers only the most basic protection needs of minorities is supported by a comparison with international minority rights standards. The triad of diversity elements guaranteed by Article 22 (culture, religion, language) coincides with the three categories recurrently protected by international minority rights provisions.36 The main minority protection clause in international law is in Article 27 of the International Covenant on Civil and Political Rights (ICCPR). This international human rights treaty has been considered by the ECJ as a possible source of Community rights.37 Article 27 of the ICCPR declares: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. (Emphasis added)

There is no unanimously accepted definition of “minority”, but the one closest to being accepted – at least, the internationally most frequently referenced one – is the one proposed by Capotorti (and see, for example, Pallek 2000: 591–595, Hipold 2001:432). Capotorti’s definition is regarded as based on Article 27 ICCPR:38 A minority is a group numerically inferior to the rest of the population of a State, in a nondominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

It is worthy of note that this definition has been influential in the further development of international minority protection standards. The basic character of the triad of diversity elements is confirmed by other international instruments aiming at the establishment of standards in this field. According to the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, approved by the General Assembly of the United Nations, “[p]ersons belonging to national or ethnic, religious and linguistic minorities […] have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination” (Article 2). The Framework Convention for the Protection of National Minorities goes a step further, since it imposes on the signatory parties the obligation “to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage” (Article 5(1)).39

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A counterargument may still be brought against this interpretation: the absence of the word “minority” in Article 22. Some authors interpret as supporting evidence the failure to introduce an explicit minority protection clause during the Convention, such as those being proposed by various NGOs and Convention members. However, the scope of Article 22 must not be assessed according to what some had expected from the drafting of the Charter, but according to what it actually delivers. This does not mean that the explicit proposals for minority protection being made inside and outside the Convention are irrelevant for the interpretation of Article 22. In fact, as we have already shown, this provision is a synthesis of the position of those willing to promote a comprehensive minority protection scheme and the position of those finding it inconvenient to open such a debate. At any rate, in the end, the term “minorities” is part of the Charter. It was avoided within Article 22 but introduced into the preceding anti-discrimination clause, as a further basis for the prohibition of discrimination. Most significantly, thanks to the pressure of some new Member States, a similar term was also introduced into the Constitutional Treaty to express the EU’s commitment to the human rights of persons belonging to minorities. Article I-2 states the EU’s values: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. (Emphasis added)

Article I-2 is undoubtedly a provision of paramount importance to the Constitutional Treaty.40 It not only recognizes in the Constitutional Treaty the fact that, within the EU, there are persons belonging to minorities, which is itself an advance; it also recognizes, through Articles I-58 and I-59 of the Constitutional Treaty, the importance of Article I-2. Articles I-58 and I-59 make respect for human rights, “including the rights of persons belonging to minorities”, a criterion of initial and continuing membership in the Union. More precisely, Article I-58 links the conditions of eligibility for states that wish to become members of the Union to their respect for the values referred to in Article I-2 and their commitment to “promoting them together”. The conclusion that Article 22 may be regarded as a minority-protection provision does not bear on the kind of protection it provides to minorities. As has been correctly noted, the systematic consideration of a provision as one relating to minorities does not in itself imply any specific legal effect (Hölscheidt 2003: 296). But it is crucial to qualify Article 22 as such if we want to establish its significance



Chapter 7.  Article 22 of the EU Charter 159

and legal consequences correctly.41 Otherwise, Article 22 might be interpreted as just establishing a value or a programmatic guideline.

Defining the scope of protection Negative scope of protection Before exploring the scope of protection, some preliminary words need to be devoted to the issue of the verb used in Article 22. Some German commentators have argued that “respect” (achten) is a consciously chosen weak form.42 Accordingly, “respect” would mean just abstention from any interference. Yet, the German grammatical argument does not seem conclusive. The Charter is not very coherent when it uses the verbs “respect”, “protect”, “acknowledge” and “recognise”.43 “Respect” may in the abstract and in some languages seem a less compelling term in that series, but it does not need to be so in the context of the Charter and of the Constitutional Treaty or even in other languages (English, for example). On the one hand, according to Article 51 of the Charter, rights are to be “respected” whereas principles are to be “observed”. Moreover, the most important provision of the Charter, which refers to human dignity, located at the forefront of the catalogue, states that “it must be respected and protected.” On the other hand, commentators on the Charter from other language regions arrive at a contrary conclusion on the basis of their own linguistic sense. For instance, Article I-9(1) of the Constitutional Treaty, which uses the term “recognise” to introduce the fundamental rights contained in Part II of the Treaty, has been interpreted as a conscious attempt to reduce the binding effect of the Charter’s fundamental rights, on the assumption that it does not use a “harder” term like “respect”.44 However, although Article 22 imposes on the Union the duty of “respecting” linguistic diversity, the last sentence of the Preamble of the Charter and that of Article I-9(1) of the Constitutional Treaty impose on the Union the duty of “recognizing” the rights, freedoms and principles set out in the Charter. It would be rather confusing for citizens of the Union if the obligations of the Charter were organised hierarchically by virtue of a rather enigmatic semantic criterion. It has been argued that Article 22 has merely an objective scope: It would impose on the EU institutions the requirement of taking into account cultural, linguistic and religious diversity while exercising the Union’s competences under the Treaties (or the Constitutional Treaty). It would imply a benchmark for exercising discretionary competences in dubio pro diversitate. If, for instance, the Union wanted to proceed to harmonize national legislation in a given field, it should employ the least intrusive and most respectful means with regard to diversity to

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achieve that objective (Hölscheidt 2003: 296). This interpretation is not convincing. First, it is not clear what the added value to the principles of subsidiarity and proportionality would be. Second, it reduces the scope of a fundamental rights provision to a criterion for the exercise of discretionary powers. Admittedly, the wording of Article 22 contains a number of limitations. In fact, it is the shortest provision in the whole Charter and it uses less compelling language than other Charter provisions do. It does not explicitly recognise a right to respect for linguistic diversity: it merely imposes on the Union the obligation of respecting linguistic diversity. Consequently, we have to interpret the scope of protection with teleological and systematic tools. The meaning of Article 22 should be consistent with the objective of the Charter, which was to provide the EU with a list of individual rights for human beings, that is, a set of individual positions in need of protection. Therefore, an interpretation of Article 22, according to which cultural, religious and linguistic diversity is merely celebrated or proclaimed as an uncompromising value will be not only politically deceptive but also wrong. It is the dignity and rights of persons belonging to linguistic minorities that the Charter addresses, and not the dignity of languages.45 We have already argued, first, that the provision addresses the most vital protection needs of minorities (respect for their cultural, religious and linguistic diversity), and, second, that it applies to persons belonging to any cultural, religious or linguistic minority. Therefore, we should accept that the rationale behind Article 22 aims at providing a minimum form of protection fundamental for minorities: it is not a rhetorical provision but a practical one. If Article 22 deals with the most basic needs for the protection of cultural, religious and linguistic minorities, it appears that the obligation imposed on the Union would be, at least, one of non-interference in the use of their own language, the profession and practice of their own religion, or the enjoyment of their own culture by persons belonging to cultural, religious and linguistic minorities.46 In other words, regardless of an eventual positive scope of protection under Article 22, the ban on unjustified interference with minorities under the requirements of Article 52 should constitute a minimum obligation imposed on the activities of the Union.

Positive scope of protection: the implementation of Article 22 There is some confusion arising from Article 52(5) of the Charter that needs addressing. One of the most relevant legal findings concerning the Charter of Fundamental Rights, which emerged during the post-drafting period, was that the Charter contained not only fundamental rights, but also principles. Generally speaking, this distinction was introduced to fit the differences between civil and



Chapter 7.  Article 22 of the EU Charter 161

political rights on the one side and social and economic rights on the other. The main legal consequence of the distinction is that the provisions containing principles are not immediately applicable: they need to be implemented by legislative and executive acts. Article 52(5) states: The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

Does the differentiation between principles and enforceable rights apply to Article 22? The analogy between the protection of cultural, linguistic and religious diversity on the one hand and social and economic rights on the other has some justification. Article 22 is located in Chapter III of the Charter (“Equality”), which does not gather together all the Charter’s social and economic rights, but does contain a good number of them. However, if the previous argument is accepted, namely that the scope of protection of Article 22 includes at least an obligation on the part of the Union to avoid interference in the use of the languages of linguistic minorities, it can be deduced that the claim that Article 22 does not give rise to an enforceable right is incorrect: we argue that Article 22 gives persons belonging to minorities an enforceable right to be free of EU interference in the preservation of their minority characteristics. Whether Article 22 puts the EU under an obligation to support linguistic diversity actively remains an open question. Most commentators answer in the negative. There is some justification for this view. Article 22 lacks a clear commitment to the protection and preservation of linguistic diversity. “Respect” is a weak verb that does not imply the degree of commitment attached to other verbs (for instance: promote, preserve, protect, support, assist). Further, it appears to be significant that Article 22 does not specifically address the issue of affirmative action and positive obligations, while a specific article dealing with affirmative action related to equality between men and women is placed in the same Chapter (Article 23).47 On the other hand, Article 22 does not explicitly exclude an understanding of “respecting linguistic diversity” as also embracing a power to take positive measures.48 It must be noted that Article 22 does not use the typically negative formulation used in other rights standards. For instance, Article 27 ICCPR proclaims that members of minorities “shall not be denied the right […] to enjoy their own culture, to profess and practice their own religion or to use their own language.” Accordingly, some scholars argue that Article 27 only requires that a state desist from interfering with the desire of minorities to enjoy their own culture, to

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profess and practice their own religion or to use their own language. State parties would be under an obligation to ensure that the existence and the exercise of the right are protected against their denial or violation, but they would not be legally obliged to support minority cultures, religions or languages actively.49 However, this point is not undisputed;50 nor would it be a point that could automatically be extrapolated to Article 22 of the Charter, given that this provision is not phrased negatively. Moreover, the systematic location of a provision is relevant to its interpretation. Article 22 is located in the Charter’s Title on “Equality”, right after the universalistic proclamation of equality before the law (Art. 20) and the principle of nondiscrimination (Art. 21), and immediately before an explicit recognition of the legitimacy of positive discrimination in favour of “the under-represented sex”: “The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”. Similarly, Article 22 can be understood as introducing a correction to a universalistic application of general fundamental rights; in other words, it would provide the EU institutions with a legal basis authorizing derogations of the principle of formal equality and, in particular, of the universalistic application of general fundamental rights, with a view to protecting cultural, religious and linguistic minorities (Rolla 2004: 830–1). But the main obstacle to the establishment of a positive obligation on the part of the EU does not derive from the wording of Article 22. The Charter provisions do not have the same legal effects vis-à-vis the Union that fundamental rights provisions from international instruments or from national constitutions have visà-vis state authorities. The Union does not have general competence: it must act within the limits of its powers.51 Therefore, the Charter provisions cannot unfold the same empowering effects as constitutional provisions on fundamental rights often do, which, apart from setting obligations, also enable authorities to take positive measures to guarantee the exercise of certain rights. The reason is simple: Article 51(2) explicitly disallows it. Article 51(2) of the Charter [Article II-111(2) of the Constitutional Treaty] stipulates that it “does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution.” At the end of the day, the possibility of taking positive measures is dependent on the existence of powers on the part of the Union to adopt them, not on the wording of Article 22. If Union institutions want to promote linguistic diversity, they have to look for the corresponding power in the Treaties – or in the Constitutional Treaty. The Constitutional Treaty neither changes nor increases current powers to implement a policy promoting cultural and linguistic diversity. At present, there



Chapter 7.  Article 22 of the EU Charter 163

is only an “indirect foundation” for an EU policy on language and cultural diversity, and hence for “a policy protecting the cultural distinctiveness of minority groups”.52 Admittedly, such indirection has inherent limitations. It rests on a rather weak legal foundation, but one whose scope nevertheless could allow for more supportive measures than those so far adopted (see de Witte 2004a:236–240). The only change that would result from the eventual coming into force of the Constitutional Treaty as it now stands would be the explicit inclusion of respect for the Union’s “rich cultural and linguistic diversity” among the Union’s objectives in Article I-3(3). It remains unclear whether this new formulation will prompt more decisive and positive measures in favour of lesser-used languages than have been taken up to now, or whether the words are just a rhetorical adaptation of the “old” Community objective of “a contribution … to the flowering of the cultures of the Member States” (Article 3(1)(q) EC).

Conclusions As Poiares Maduro (2003: 286) has argued for social rights, what is most important is that, in light of the past context of fundamental rights in the EU, the value of minority protection, either as rights or as principles, is now effectively incorporated into the fundamental rights discourse. The extent of its impact on the EU legal order will depend on the dominant constitutional conception of the Charter. Article 22 can arguably give support to an understanding of linguistic diversity as a principle of fundamental importance in EC/EU law.53 It seems, however, that this will prove insufficient for the protection of linguistic minorities in the EU. The real challenge for Article 22 lies in unfolding its potential by elaborating it into a specific minority protection clause. Its wording contains many limitations: it avoids mentioning minorities by name and tries to keep the Union’s obligations to the lowest possible level. Nevertheless, those limitations should not hide the potential that might be provided by a coherent teleological and systematic interpretation. We have argued in this chapter that Article 22 is a minority protection clause because it addresses the most basic protection needs of minorities. The triad of protected elements (culture, religion and language) is common among international minority rights standards such as Article 27 ICCPR. The personal scope of Article 22 embraces all kind of minorities, be they of autochthonous or immigrant groups, in that the provision indicates no restriction. As to its substantive scope, we argue that Article 22 gives persons belonging to minorities an enforceable right to non-interference by the EU with their minority characteristics, including the enjoyment of their own culture, the practice and profession of their own

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religion and the use of their own language. This is a minimum form of protection which does not exclude the possibility and even opportunity of more specific safeguards. Above all, it is one to which the Union should seriously commit if it wishes to make credible the claim that it is founded on the values of respect for human dignity and human rights, “including the rights of persons belonging to minorities” (Article I-2 of the Constitutional Treaty). Those who disregard Article 22 as a minority protection clause apparently want to convey the understanding that it is not a provision committed to the protection of a special kind of minority, the long-established or autochthonous national minorities.54 The nature and degree of protection so- called national or ethnic minorities may require is an issue the Convention did not deal with. These conclusions are consistent with international human rights law and are in line with recent international developments in the field of cultural diversity. Article 22 accords to persons belonging to minorities a level of protection equivalent to the one recognised by international human rights law, in particular the one provided by Article 27 ICCPR. It gives minorities within the EU merely the most basic protection. It does not give full satisfaction to the range of vital interests that ethnic and national minorities effectively possess. Fortunately, most of them already have, explicitly or implicitly, in their national legal orders, protection that goes beyond what Article 22 provides.55 It can be disputed whether the better place for the recognition of legal rights in this respect is the EU Charter (or even EU law), or the treaties prepared at the instigation of the Council of Europe and submitted to the Member States. But it should not be denied that it is politically very advantageous that the European Union, in the twenty-first century, commits itself to a basic common standard applicable to every kind of minority, be it “old” or “new”. At the same time, it will be obvious, also from the perspective of EU law, that the position taken by some Member States, that there is no provision for minorities in its legal order or political system because all citizens are equal before the law, is unsustainable.56 The interpretation of Article 22 advocated in this chapter is also in line with the UNESCO Universal Declaration on Cultural Diversity (2001), in particular the recognition of the key notion of multiple identities, to the extent that it implicitly recognises the right of persons belonging to minorities to explore and foster their sense of cultural, religious and linguistic identity, both as individuals and as members of a minority. Finally, we turn to answering the question raised in the title of this chapter. How far does Article 22 (jointly with other provisions of the Constitutional Treaty) advance or hinder the issue of linguistic diversity? Article 22 (as in the case of many other Charter provisions) illustrates the recurring ambivalences of the European integration process. Nevertheless, the inclusion of an explicit reference



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to linguistic diversity in the EU Charter of Fundamental Rights is an important step in the right direction. It can contribute to raising the awareness of linguistic diversity within Europe and to fostering a political climate more committed to its preservation. Without the existence of a dominant culture in favour of linguistic diversity,57 it is unlikely that the Union will be prepared to put more money into it than it is currently investing, or to accept the political implications of preserving it.

Notes 1. An integration process whose success is not restricted to achievements at the level of formal political institutionalisation. As Pogány (2004: 89) has noted, “for the first time in well over two hundred years, there is an extraordinary degree of ideological convergence across Europe.” 2. Some authors consider minority rights as a contested norm in the present stand of EU law, not enshrined in the acquis communautaire. See Schwellnuss (2001); Wiener & Schwellnuss (2004). 3. Concerning the EU conditionality and the “double standards” issue, see de Witte (2000), Van den Berghe (2003), Sasse (2005). A comprehensive view of the whole conditionality field can be found in Fierro (2003). 4. For some prospective thinking, see Wiener & Schwellnuss (2004: 29–35) and de Witte (2004b: 109). 5. Hölscheidt (2003: 295); see also Hilpold (2001: 469), Nettesheim (2002: 39), de Witte (2004a: 239, 2004b: 115), McGoldrick (2004: 118–119). But see Henrard (2004). 6. Piciocchi (2002), Rolla (2004: 830–831). Section 27 of the Canadian Charter of Rights and Freedoms stipulates that “the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” 7. Similarly, Campins Eritja (2002: 109). Nevertheless, Wallace and Shaw argue that the Charter provisions might be used “as a springboard” and that Articles 14 and 22 “could be a way of opening a dialogue which could lead to the creation of positive rights for minorities.” 8. Although sceptical on the legal potential of Article 22 for the protection of minorities, de Witte (2004b: 115) considers that it is not “entirely meaningless”: he does not exclude that the commitment to cultural diversity may affect the way in which the European Court of Justice interprets and applies internal market and competition law. In this regard, Benoît-Rohmer (2005: 317) states that Directive 89/552/EC on cross-border television broadcasting is a legal text that is in accord with Article 22. On the impact of Article 22 on mandatory local language rules concerning product packaging, see Weatherill (2004: 206–209). 9. On the drafting process, see de Búrca (2001) and Schönlau (2005). 10. Contribution 110, CHARTE 4237/00.

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11. See also the proposed new Article by Johannes Voggenhuber, Amendment 598, CHARTE 4332/00. 12. Grabenwärter 2001: 6 (“Er bildet das – bescheidene – Ergebnis des Ringens um die Verankerung eines spezifischen Schutzes von Minderheiten”); see also Hölscheidt (2003: 294), who suggests that the formulation adopted by the Presidium in Article 22 came with the purpose of taking minorities increasingly into consideration. 13. What national identity should mean as an object of protection is itself a difficult question: see Bleckmann (1997). De Witte (1992: 20) argues that “the fairly vague notion of ‘national identity’ might become legally relevant by referring to the constitutions as the main repository of national identity.” 14. Among the EU member and medium-term candidate states, only France and Turkey have not signed the Framework Convention for the Protection of National Minorities, and Luxemburg and Greece have not yet ratified it. Among the EU Member States and medium-term candidate states, Belgium, Bulgaria, Estonia, Greece, Ireland, Latvia, Lithuania, Portugal and Turkey have not signed the European Charter of Regional or Minority Languages; and France, Italy, Macedonia, Malta and Romania have not yet ratified it. 15. See, for example, de Witte (2004: 217). However, Martín Estébanez (1995: 160) believes that, although international law provisions relevant to minority protection “are not strictly binding upon the Community under public international law, they supply guidelines which should be followed within the framework of Community law.” 16. Human rights belong to the general principles of law whose observance is guaranteed by the Court; in that task, the Court “draws inspiration from constitutional traditions common to the Member States and from guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories.” See, in particular, Case C-260/89 ERT [1991] ECR I-2925, para. 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, para. 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, para. 23; Case C-112/00 Schmidberger [2003] ECR I-5659, para. 71. 17. This is an example given expressly by de Búrca (2003: 15) to make a case for the preservation of the current openness of the category of general principles of law. 18. Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, CETS No. 164. On December 1, 2004, eleven Member States of the Union had not ratified the Convention: Finland, France, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, Poland, Sweden and United Kingdom. Compare the deletion amendment no. 72 put forward by F. Korthals Altes, CHARTE 4332/00. 19. The list is impressive and goes back to 1981: Resolution of the European Parliament of 16 October 1981 on a Community Charter of Regional Languages and Cultures and a Charter of Rights of Ethnic Minorities (OJ C 287, at 106); Resolution of the European Parliament of 11 February 1983 on measures in favour of minority languages and cultures (OJ C 68, at 103); Resolution of the European Parliament of 30 October 1987 on the languages and cultures of regional and ethnic minorities in the European Community (OJ C 318, at 160); Resolution of the European Parliament of 11 December 1990 on languages in the Community and the situation of Catalan (OJ C 19, at 42); Resolution of the European Parliament of 9 February 1994 on



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the linguistic and cultural minorities in the European Community (OJ C 61, at 110); Resolution of the European Parliament of 13 December 2001 on regional and lesser-used European languages (OJ C 177 E, at 334); Resolution of the European Parliament of 4 September 2003 with recommendations to the Commission on European regional and lesser-used languages  – the languages of minorities in the EU – in the context of enlargement and cultural diversity (A50271/2003). 20. The relations between language and culture are diverse. Here, a dynamic view of culture is taken. There can be cultural continuity despite language shift, as well as cultural diversity despite language continuity. As many sociolinguists affirm, “promoting the culture as a whole is the precondition for enabling a language to grow” (Crystal 2000: 124). 21. In this sense, on Article 149 EC, see de Witte (2004: 206). 22. And an identity marker as well. But for present purposes, we concentrate on the communicative aspects most relevant for the rights approach. 23. See the introduction to this volume. 24. The Preamble of the Charter reiterates the Union’s respect of “the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States”. 25. Martín Estébanez (1995: 137–140, 149) argued that, by virtue of Articles 126 and 128 of the Treaty on the European Union, cultural pluralism characterizing European states had already been acknowledged and become an object of protection, and that “the Community must take positive action to facilitate the development of minority cultures and identities.” 26. On the idea that Article 22 provides a significant counterpoint to EU identity, see Braibant (2001: 157); Hölscheidt (2003: 295). For Nabli (2005: 179), it would be a counterpoint to the recognition of a limited number of official languages. On the relevance of the national identity clause, see Bleckmann (1997); on the possible contribution of Article 151 EC to developing a European identity, see Craufurd Smith (2004). 27. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Brussels, 24.07.2003, COM(2003) 449 final. 28. Section 1, point III.1. Despite this rather grandiloquent statement in the text of the Communication, the same source recognises a very significant exception to that mainstream approach in a footnote, which is argued on the basis of a disputable assumption: “There is an exception in the case of some Socrates actions which are targeted at learning languages as foreign languages; in these cases, the list of eligible languages are defined by the Decision as the official languages of the European Union plus Letzebuergesch and Irish. In general, however, regional and minority language communities do not seek support for the teaching of their languages as foreign languages.” (Emphasis added in last sentence). According to de Witte (2004b: 120), this practice reveals an obvious double standard, which (we add) has no legal basis in the Treaties. 29. Recent examples are the case of data protection and the prohibition of the reproductive cloning of human beings, or previously, in the middle of the 20th century, the protection of private life.

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30. Celotto (2001: 176) considers that “(l) art. 22 (…) costituisce una ulteriore affermazione del principio di non discriminazione, con specifico riferimento alla tutela del principio di differenziazione….” The criticism of some authors on this point seems to ignore this link: see, for example, Wallace & Shaw (2003: 228), Grabenwärter (2001: 6). 31. See Articles 26 (equality and non-discrimination) and 27 (protection of minorities) of the International Covenant on Civil and Political Rights. Similarly, the New Zealand Bill of Rights Act 1990 recognises freedom from discrimination (Section 19) and rights of minorities (Section 20) under the same chapter, “Non-Discrimination and Minority Rights”. 32. Advisory Opinion on Minority Schools in Albania, (1935) PCIJ, Series A/B, No. 64, 3, at 4 (quoted by de Varennes 2001: 6). 33. Nevertheless, it must be noted that, within the framework of the EU, languages with a larger number of speakers (e.g. Catalan or Galician) may be in a less favourable situation than languages with a smaller number (e.g. Danish, Estonian, Maltese), provided that they do not enjoy nation-state language status, nor consequently official status in the EU. 34. See Phillipson (2003), who argues a case for more active language policies that can serve to ensure the continued vitality of all the languages of Europe. 35. According to their philosophical foundations, fundamental rights serve the interests of the whole society. Unfortunately, the majority often regards minority issues as an alien problem. Whereas everyone can eventually benefit from the fundamental rights protection as far as he or she may find himself/herself in the position of a child (Article 23), of an elderly person (Article 24) or of a person with disabilities (Article 25), it proves to be more difficult for a person belonging to the dominant ethnic, linguistic or religious group to imagine himself/herself becoming a person belonging to the minority. 36. Similarly, Braibant (2001: 159) notes that the terms of Article 22 express “les principaux éléments d’une définition des minorités” 37. Case 374/87 Orkem v. Commission [1989] ECR 3283, para. 31. 38. Capotorti (1979: para. 568). See a critical discussion on the exclusion of non-citizens from the definition of minority under Article 27 ICCPR, de Varennes (1996: 136–145). 39. On this provision, see Gilbert (2005: 154–172). 40. As de Witte (2004a: 111) has correctly noted, the reference is ambiguous, since it does not make clear whether persons belonging to minorities have additional rights or just the same human rights everyone enjoys. To a similar effect, Decaux (2004: 29) argues that Article I–2 is nearer to Article 14 ECHR’s logic than to Article 27 ICCPR’s. But he concedes that Article I–2 “ne manquera pas de rendre encore moins compréhensible la position juridique d’objecteur persistant de la France s’agissant du refus d’accorder sur son sol des droits spécifiques à des groupes se définissant en tant que minorités nationales.” 41. Without regarding Article 22 as a provision dealing with the vital needs of persons belonging to minorities, there is a risk of misunderstanding the scope of the diversity guaranteed by Article 22. For instance, it has been claimed, after explicitly disregarding Article 22 as a



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minority protection provision, that its scope concerns the linguistic diversity of the whole world: see Hölscheidt (2003: 295). 42. Hölscheidt (2003: 269). Celotto (2001: 177) offers a more qualified view: it would be an ambiguous formulation, since it does not limit itself to prohibit discrimination (which is already prohibited by Article 21), nor commits it itself openly to positive duties to protect diversity. 43. Hölscheidt (2003: 269). Grabenwärter (2001: 12) criticizes that the Charter uses as many as seven ways of formulating the fundamental rights provisions. 44. This interpretation stems from a qualified actor in the drafting of the Charter. See Lord Goldsmith (2004: 475). 45. There is a danger of reducing Article 22 to a sort of “cultural richness” clause. Decision 1934/2000/EC of the European Parliament and of the Council on the European Year of Languages 2001, of 17 July 2000 (OJ L 232), establishes as one of the objectives of that action: “to raise awareness of the richness of linguistic and cultural diversity within the European Union and the value in terms of civilisation and culture embodied therein, acknowledging the principle that all languages must be recognised to have equal cultural value and dignity”. More recently, the Council Resolution on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages 2001, of 14 February 2002 (OJ C 50), despite invoking Article 22 of the Charter, considers linguistic diversity primarily from the point of view of acquisition of market-oriented basic skills; it also invites the Commission “to take into account, in this context, the principle of linguistic diversity in its relations with third [i.e. non-member] and candidate countries”. 46. For some (Benoît-Rohmer 2005: 312), Article 22 is limited to establishing a duty of noninterference. 47. Heringa & Verhey (2001: 29). These authors criticise this state of affairs for the whole Chapter on Equality: “Simple ‘respect’ is not sufficient; integrative measures should be an essential element, and not because they are an exception to the principle of equality, as Article 23 seems to indicate, but because they are an inherent part of it”. 48. Celotto (2001: 177) argues that the provision is ambiguously open-ended: “non prende posizione apertamente sul punto (…) neppure si impegna apertamente a comportamenti positivi che tutelino o garantiscano la diversitá”; similarly, Campins Eritja (2002: 111) believes that Article 22 can give support to either a negative or a positive interpretation of the character of the obligations created by it. For Castellà (2002: 73), Article 22 contains a dynamic element including positive action in comparison to Article 21’s basically negative character. 49. On this discussion, see de Varennes (1996: 150–157). 50. The General Comment 23 of the UN Human Rights Committee, on Article 27 ICCPR, states that “positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group” (Fiftieth session, 1994, at para. 6.2). Also in this sense, see Thornberry (1991: 141–247 and 387; 1995: 24); Dunbar (2001: 107). It is conceded that, because of its lack of specificity, Article 27 ICCPR leaves

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“a wide discretion to States on the modalities of its application” (Thornberry 1991: 387 and 1995: 24–259). 51. See, for example, Craig & de Búrca (2003: Chapter 3). 52. For an elaboration of this indirect foundation, see de Witte (2004a:235–236 and 2004b: 121– 122), Nic Shuibhne (2004: 9), Nabli (2005: 182–183). 53. The existence of that principle has been assumed by Advocate-General Poiares Maduro in his Opinion to Case C-160/03 Spain v Eurojust [2005] ECR I-2077, paras. 35–38. For the Advocate-General, the Union institutions and bodies have a prima facie duty to respect the principle of linguistic diversity. 54. On the importance of taking into account this differentiation and the possibility of two different standards, see de Varennes (1996: 173). 55. For recent systematic research about 35 European states see Pan & Pfeil (2006). Possibly the main exception are the Roma and Sinti (i.e. gypsies and travellers). The right to preserve their characteristics is contradicted by many laws and practices not only in Central and Eastern Europe, but also in Western Europe. See Pogány (2004). 56. Some authors argue that this is already unsustainable under Article 27 ICCPR, and for some, even the reservation made by France on that ground would not be consistent with that Covenant. See Donders (2002). 57. An expert (Akira Yamamoto) distinguishes this as one of the nine factors that help maintain and promote the small languages. The nine factors are quoted in Crystal (2000: 143–144). See also Annamalai (2004).

References Annamalai, E. 2004. “Public Perception of Language Diversity”. Paper presented at the Linguapax Congress on “Dialogue on Language Diversity, Sustainability and Peace”, Barcelona, May 2004. Benoît-Rohmer, Florence. 2005. Article II-82. Traité Etablissant une Constitution pour l’Europe. Commentaire Article par Article ed. by Laurence Burgorgue-Larsen, Anne Levade & Fabrice Picod, vol. II, 309–317. Brussels: Bruylant. Braibant, Guy. 2001. La Charte des droits fondamentaux de l’Union européenne. Paris: Seuil. Campins Eritja, Mar. 2002. “El reconeixement de la diversitat lingüística a la carta dels drets fonamentals de la Unió Europea”. Revista de Llengua i Dret 38.95–115. Capotorti, Francesco. 1979. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. New York: United Nations. Castellà, Santiago. 2002. “La protecció de les minories per la Unió Europea”. El Dret a la Diversitat Lingüística. Reflexions al voltant de l’article 22 de la Carta dels Drets Fonamentals de la Unió Europea ed. by CIEMEN, 47–74. Barcelona: Mediterrània.



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Celotto, Alfonso. 2001. Articoli 21-22. L’Europa dei Diritti. Commento alla Carta dei Diritti Fondamentali dell’Unione Europea ed. by Raffaele Bifulco, Marta Cartabia & Alfonso Celotto, 171–178. Bologna: Il Mulino. Craig, Paul & Gráinne de Búrca. 2003. EU Law: Text, Cases and Materials. 3rd edition. Oxford: Oxford University Press. Craufurd Smith, Rachael. 2004. “Article 151 EC and European Identity”. Culture and European Union Law ed. by Rachael Craufurd Smith, 277–297. Oxford: Oxford University Press. Crystal, David. 2000. Language Death. Cambridge: Cambridge University Press. de Búrca, Gráinne. 2001. “The Drafting of the EU Charter of Fundamental Rights”. European Law Review 26:2.126–138. de Búrca, Gráinne. 2003. “Fundamental Rights and Citizenship”. Ten Reflections on the Constitutional Treaty for Europe ed. by Bruno de Witte, 11–28. Florence: Robert Schuman Centre for Advanced Studies, European University Institute. Decaux, Emmanuel. 2004. “Les droits de l’homme dans la Constitution Européenne: Le chameau et le caméléon”. Comentarios a la Constitución Europea ed. by Enrique Álvarez Conde & Vicente Garrido Mayol, vol. II, 17–39. Valencia: Tirant lo blanc. de Varennes, Fernand. 1996. Languages, Minorities and Human Rights. The Hague, Boston & London: Martinus Nijhoff. de Varennes, Fernand. 2001. “The Linguistic Rights of Minorities in Europe”. Minorities Rights in Europe: European Minorities and Language ed. by Snežana Trifunovska, 3–30. The Hague: T.M.C. Asser Press. de Witte, Bruno. 1992. “Community Law and National Constitutional Values”. Legal Issues of European Integration 1–22. de Witte, Bruno. 2000. “Politics versus Law in the EU’s Approach to Ethnic Minorities”. EUI working paper, RSCAS no. 2000/4. de Witte, Bruno. 2004a. “Language Law of the European Union: Protecting or Eroding Linguistic Diversity?” Culture and European Union Law ed. by Rachel Craufurd Smith, 205–241. Oxford: Oxford University Press. de Witte, Bruno. 2004b. “The Constitutional Resources for an EU Minority Protection Policy”. Minority Protection and the Enlarged European Union: The Way Forward ed. by Gabriel N. Toggenburg, 107–124. Budapest: Local Government and Public Service Reform Initiative & Open Society Institute. Dunbar, Robert. 2001. “Minority Language Rights in International Law”. International and Comparative Law Quarterly 50.90–120. Donders, Yvone M. 2002. Towards a Right to Cultural Identity?. Antwerp, Oxford & New York: Intersentia. Fierro, Elena. 2003. The EU’s Approach to Human Rights Conditionality in Practice. The Hague, London & New York: Martinus Nijhoff. Gilbert, Geoff. 2005. Article 5. The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities ed. by Marc Weller, 153–175. Oxford: Oxford University Press. Goldsmith, Lord. 2004. “The Charter of Rights – A Brake Not an Accelerator”. European Human Rights Law Review 5.473–478. Grabenwärter, Christoph. 2001. “Die Charta der Grundrechte für die Europäischen Union”. Deutsches Verwaltungsblatt 1.1–13.

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Henrard, Kristin. 2004. “An Investigation into the Desirable and Possible Role of the Language Charter in Expanding on Article 22 of the EU’s Charter of Fundamental Rights”. Paper presented at the II Mercator International Symposium, Tarragona, Catalonia, February 2004. (at http://www.ciemen.org/mercator/pdf/simp-kristin.pdf) Heringa, Aalt Willem & Luc Verhey. 2001. “The EU Charter: Text and Structure”. Maastricht Journal of European and Comparative Law 8.11–32. Hilpold, Peter. 2001. “Minderheiten im Unionsrecht”. Archiv des Völkerrechts 39.432–471. Hölscheidt, Sven. 2003. “Kapitel III Gleichheit”. Kommentar zur Charta der Grundrechte der Europäischen Union ed. by Jürgen Meyer, 263–322. Baden-Baden: Nomos. Lenaerts, Koen. 1991. “Fundamental Rights to be Included in a Community Catalogue”. European Law Review 16.367–390. Levy, Leonard W. 2001. Origins of the Bill of Rights. Yale: Yale University Press. Martín Estébanez, María Amor. 1995. “The Protection of National or Ethnic, Religious and Linguistic Minorities”. The European Union and Human Rights ed. by Nanette A. Neuwahl & Allan Rosas, 133–163. The Hague: Kluwer Law International. McGoldrick, Dominic. 2004. “The Charter and UN Human Rights Treaties”. The EU Charter of Fundamental Rights: Politics, Law and Policy ed. by Steve Peers & Angela Ward, 83–122. Oxford & Portland, Oregon: Hart. Nabli, Béligh. 2005. “Le principe de diversité culturelle et linguistique au sein d’une Union élargie”. Revue Française de Droit Administratif 1.177–186. Nettesheim, Martin. 2002. “Die Charta der Grundrechte der Europäischen Union: Eine Verfassungstheoretische Kritik”. Integration 1.35–48. Nic Shuibhne, Niamh. 2002. EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights. The Hague & London: Kluwer Law International. Nic Shuibhne, Niamh. 2004. “Does the Draft EU Constitution Contain a Language Policy?” Paper presented at the II Mercator International Symposium, Tarragona, Catalonia, February 2004. (at http://www.ciemen.org/mercator/index-gb.htm) Pallek, Markus. 2000. “Minderheiten in Deutschland – Der Versuch einer juristischen Begriffsbestimmung”. Archiv des Öffentlichen Rechts 125.587–612. Pan, Christoph & Beate Sybille Pfeil. 2006. Minderheitenrechte in Europa. (= Handbuch der europäischen Volksgruppen, vol. II, 2nd ed.). Vienna & New York: Springer. Phillipson, Robert. 2003. English-Only Europe? Challenging Language Policy. London: Routledge. Piciocchi, Cinzia. 2002. “La Carta tra identità culturali nazionali ed individuali”. Diritto, Diritti, Giurisdizione. La Carta dei Diritti Fondamentali dell’Unione Europea ed. by Roberto Toniatti, 119–134. Padua (Padova): CEDAM. Pogány, István. 2004. “Refashioning Rights in Central and Eastern Europe: Some Implications for the Region’s Roma”. European Public Law 10: 1.85–106. Poiares Maduro, Miguel. 2003. “The Double Constitutional Life of the Charter of Fundamental Rights of the European Union”. Economic Rights and Social Rights under the EU Charter of Fundamental Rights – A Legal Perspective ed. by Tamara Harvey & Jeff Kenner, 269–299. Oxford & Portland, Oregon: Hart. Rolla, Giancarlo. 2004. “La problemática del multiculturalismo en la Unión Europea”. Comentarios a la Constitución Europea ed. by Enrique Álvarez Conde & Vicente Garrido Mayol, vol. II, 815–848. Valencia: Tirant lo blanc.



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Sasse, Gwendlyn. 2005. “EU Conditionality and Minority Rights: Translating the Copenhagen Criterion into Policy”. EUI working paper, RSCAS No. 2005/16. Schönlau, Justus. 2005. Drafting the EU Charter. Basingstoke: Palgrave. Schwellnuss, Guido. 2001. “Much Ado about Nothing? Minority Protection and the EU Charter of Fundamental Rights”. ConWEB No. 5/2001. (at http://les1.man.ac.uk/conweb/) Skutnabb-Kangas, Tove. 2003. “(Why) Should Diversities Be Maintained? Language Diversity, Biological Diversity and Linguistic Human Rights”. Glendon Distinguished Lecture 2003 at York University, Toronto, Canada. Skutnabb-Kangas, Tove. 2004. “The Right to Mother Tongue Medium Education – the Hot Potato in Human Rights Instruments”. Paper presented at the II Mercator International Symposium, Tarragona, Catalonia, February 2004. (at http://www.ciemen.org/mercator/ index-gb.htm) Stubbs, Sukhvinder Kaur. 2000. “Fear and Loathing in the EU: Ethnic Minorities and Fundamental Rights”. An EU Charter of Fundamental Rights – Text and Commentaries ed. by Kim Feus, 207–223. London: Federal Trust for Education and Research. Thornberry, Patrick. 1991. International Law and the Rights of Minorities. Oxford: Clarendon Press. Thornberry, Patrick. 1995. “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations, and an Update”. Universal Minority Rights ed. by Alan Phillips & Allan Rosas, 13–76. London & Åbo: Minority Rights Group & Åbo Akademi University. Toggenburg, Gabriel. 2000. “A Rough Orientation through a Delicate Relationship: The European Union’s Endeavours for (its) Minorities”. European Integration Online Papers (EIoP) 4: 22. (at http://eiop.or.at/eiop/texte/2000-016a.htm) Van den Berghe, Frédéric. 2003. “The European Union and the Protection of Minorities: How Real is the Alleged Double Standard?” Yearbook of European Law 22.155–202. Wallace, Chloë & Jo Shaw. 2003. “Education, Multiculturalism and the Charter of Fundamental Rights of the European Union”. Economic Rights and Social Rights under the EU Charter of Fundamental Rights – A Legal Perspective ed. by Tamara Harvey & Jeff Kenner, 223–246. Oxford & Portland, Oregon: Hart. Weatherill, Stephen. 2004. “The Internal Market”. The EU Charter of Fundamental Rights – Politics, Law and Policy ed. by Steve Peers & Angela Ward, 183–210. Oxford & Portland, Oregon: Hart. Wiener, Antje & Guido Schwellnuss. 2004. “Contested Norms in the Process of EU Enlargement: Non-Discrimination and Minority Rights”. ConWEB No. 2/2004. (at http://les1. man.ac.uk/conweb/)

chapter 8

The protection of linguistic diversity through provisions of the EU Charter other than Article 22 Bruno de Witte

The value of linguistic diversity is addressed directly in Article 22 of the EU Charter of Fundamental Rights. However, other provisions of that Charter may also be relevant (and even more so than Article 22) for the effective protection of the linguistic rights and preferences of individuals across Europe. This chapter focuses in particular on the significance of Article 21 of the Charter which prohibits discrimination (by the European Union itself and by its Member States when they implement EU policies) on a number of grounds, including language. The concrete meaning of linguistic equality (and linguistic discrimination) is explored in a number of specific contexts of European law and policy. This analysis is preceded by a discussion of the language component of the right to good administration, which is included as a separate right in the Charter.

The Charter of Rights is not exactly a clear blueprint for the language policy of the European Union. Apart from its enigmatic Article 22 referring to the need for the Union to respect linguistic diversity,1 there are only two other provisions in the Charter with an explicit linguistic connotation. Article 21 prohibits discrimination based on, among other grounds, language. Article 41(4) grants a right to every person to communicate with the EU institutions in one of the “languages of the Treaties”. These two provisions will be the central focus of this paper, which will explore their likely impact on linguistic diversity in Europe. However, analysis of these two rights will be followed by a final section, in which I will discuss the implied linguistic dimension of some of the other rights of the Charter, foremost among which are freedom of expression and the right to education. The analysis in this paper is subject to the usual double caveat when commenting on the provisions of the EU Charter, namely the fact that the scope of the Charter is restricted

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to the operation of the EU institutions whereas the Member States are only subject to it when they implement EU law, and the fact that the Charter is currently – pending the very uncertain entry into force of the Constitutional Treaty – not a formally binding document. The latter element should, however, not prevent us from exploring its significance for the protection of linguistic diversity (or any other public policy value) and this for two reasons: one is that the EU institutions have unilaterally declared their commitment to be bound by the Charter when they solemnly proclaimed it, and the other reason is that many of the Charter rights (including the ones discussed here) codify norms that are currently binding anyway, by being included in the EC Treaty (as is the case with Article 41(4)) or by being an unwritten general principle of Community law recognised and applied by the European Courts (on these points, see De Witte 2001).

The right to good linguistic administration Article 41(4) of the Charter states: “Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.” This is presented as one element of a more general “right to good administration” (the title of Article 41). Whereas the right to good administration, as a concept, is one of the innovations of the Charter compared to international human rights conventions and constitutional chapters on fundamental rights,2 paragraph 4 was not “invented” by the drafters of the Charter, but directly borrowed from the EC Treaty where a similarly worded right is included in the citizenship chapter (Article 21 EC). Indeed, the right to good administration itself is put within the chapter of the Charter that deals with Citizens’ Rights, though this category is rather misleading in the given case: the rights of Article 41 are granted to “every person”, and not just to citizens of the European Union. In fact, this is one significant innovation of the language right of Article 41(4) of the Charter, compared to its model in Article 21 of the EC Treaty. The right for citizens of the Union to use any of the (then) twelve “Treaty language[s]” when dealing with the institutions of the European Union was inserted in the EC Treaty by the Treaty of Amsterdam, in 1999.3 The clause of the Amsterdam Treaty gave formal recognition to the national languages of the Member States, but it corresponds to the existing long-standing practice of the European Union. Indeed, a very similar rule was set out in the very first Regulation ever adopted under the EEC Treaty, namely Council Regulation 1/58 on the use of languages by the Community institutions.4 The Council then adopted the principle, which is still valid today, that the national languages of the Member States were to rank equally as official and working languages of the European



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Communities, subject to more detailed arrangements to be adopted by each institution separately. This rule was extended later on to the national languages of all the states acceding to the Communities5 and, at Maastricht, it was also extended to the European Union, the “sister” organization of the European Community that was created to deal with new domains of cooperation (foreign relations, justice and migration).6 Still, the inclusion of a right to use these languages, as part of the citizenship rights reforms enacted by the Treaty of Amsterdam, and later through its inclusion in the Charter of Rights, is not insignificant. It lends an entrenched constitutional status, in part at least, to a linguistic regime that hitherto was regulated by an act of secondary Community law (although, to be true, the existing regime was firmly entrenched already before, thanks to the unanimity requirement imposed by Article 290 of the EC Treaty for the adoption of the relevant Council regulation). The language right is also important because it renews the original commitment of the Member States to linguistic diversity, at a time when the cost of the language regime has become incommensurably higher than in 1958. Cautious recommendations for a simplification of the Union’s linguistic regime, made now and then in recent years, were ignored in the Treaties of Amsterdam and Nice. The most recent Treaties of Accession have simply extended the existing linguistic regime to the new European Union of 27 Member States, modifying Regulation No. 1 of 1958 so as to add eleven additional official languages including even Maltese.7 Even now, the exponential increase of translation and interpretation costs, and the growing danger of communication failures between actors in the European policy-making and implementation process, could not outweigh the commitment to linguistic diversity and equality among the Member States. Between 1958 and now, the commitment to linguistic diversity has, in fact, radically changed in its tone and its implications. In 1958, it was a pragmatic solution that the EEC took in the same way as other international organisations that must decide on their language regime.8 The rather liberal option taken then in the EEC, which did not sacrifice any of its Member States’ national languages, was taken at a rather low cost, because it meant that a co-official status was being given to four languages only (French, German, Italian and Dutch). Today, the commitment to the equality of Europe’s national languages has become a constitutional principle of paramount importance, which is extended to twenty-three languages and therefore lays a heavy burden on the Union’s institutional machinery. It entails a duty for the European institutions to set aside the resources needed to communicate if necessary in all official languages. In addition, one could argue, given the overall context of Article 41 emphasizing the need for “good administration”, that the duty for the European administration is not just to communicate in a number of given languages, but also to communicate with citizens in clear and

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understandable language; but this raises an entirely different set of issues which I cannot explore here (on this question, see Aziz 2004). At any rate, the principle does not guarantee full equality between all European Union citizens and residents irrespective of their mother tongue. The main reason for this is that it applies to the national languages of the Member States, and not to regional languages, some of which have more speakers than some of the national languages (compare Catalan with Danish, or Basque with Maltese), nor to languages of migrant communities. Moreover, the leeway left to each of the institutions by Article 6 of Regulation 1/58, namely that they can make practical accommodations of the equality norm, has been used very extensively. The day-to-day reality of the European Union shows a rather different picture from the principles outlined above.9 It is widely known that the internal working languages of the Commission services are English and French, to the almost total exclusion of the other languages (although German is formally the Commission’s third working language, it is very seldom used). It is also known that the European Court of Justice has so far conducted its deliberations in French, and that much of its preparatory work takes place exclusively in French. Increasingly, policy documents emanating from the European institutions are placed on the internet site of the EU in a few language versions only. There is also a tendency to restrict the range of languages to be used in newly established bodies of the European Union, such as the EU agencies that have mushroomed in recent years. In the Kik case, both the Court of First Instance, and later the European Court of Justice,10 accepted to distinguish between the language regime of the EU institutions and that of other “bodies”, such as OHIM, the trade mark office of the European Union, by stating that Council Regulation 1/58 only applied to the former but not to the latter. The argument was made by the applicant that the language regime of the OHIM was in breach of the unwritten principle of non-discrimination, because it treated speakers of the smaller Community languages less favourably than the speakers of the five most widely spoken languages. The Court of First Instance rejected this claim and held that “in pursuing the objective of determining the language of the proceedings where parties who do not share the same language preference fail to agree, the Council must be considered to have made an appropriate and proportionate choice, even if the official languages of the Community were treated differently.”11 Clearly, the Court of First Instance gave precedence to the interest of ensuring the efficient functioning of the trade mark office over the interest of protecting the linguistic interests of applicants from smaller EU countries. The importance of the Kik judgments is that they exclude the existence of a constitutional principle of language equality, and thereby they pave the way for the EU legislator to create differentiated



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language regimes for the various EU agencies – though not for the institutions referred to in Article 21 EC, with which citizens have a constitutional right to use any of the official EU languages. Article 41 has not modified this balance: whereas the right to good administration recognized in paragraph 1 of the Article is declared applicable to the institutions and bodies of the Union, the language right of paragraph 4 is limited to the institutions and therefore does not apply to the various “bodies” outside the main institutions. This may be disappointing from the point of view of linguistic diversity, but it can be justified by the need to allow small agencies not to be burdened by the requirement to use twenty-three different languages. The enlargement of the European Union has prompted new efforts for reforming the overall language regime of the European Union. The Seville European Council, in June 2002, asked the Council of Ministers “to study the question of the use of languages in the context of an enlarged Union and practical means of improving the present situation without endangering basic principles.” The Council did present a short note in December 2002,12 but clearly further thought will have to be given to this question. In the coming years, the European Union will probably seek to streamline its present regime of “controlled multilingualism”. It will try to restrict the occasions at which interpretation and the translation of documents is required in its internal operation, within the legal limits set by the official language regime and the political limits set by the governments of countries speaking languages other than English and French. In the external domain, that of relations between EU institutions and the citizens, the existing arrangements will hardly be modified, since the right to use any of the EU official languages is guaranteed by primary law. A sore point, in this respect, is the fact that speakers of regional and minority languages are excluded from the full benefit of this right. If this is a fundamental right (as it clearly is after its incorporation in the EU Charter), then how can one justify that it is granted to those who speak Maltese and not to those who speak Catalan? At the very least, one can conclude that the restricted scope of this fundamental right relates uneasily with another fundamental right of the Charter, the right not to be discriminated on the ground of language – the right to which we now turn.

The prohibition of discrimination on grounds of language The “suspect” grounds of discrimination listed in Article 21 of the Charter are the same as those of Article 14 of the European Convention of Human Rights, with the addition of some new grounds. Language is one of the “old” grounds drawn from Article 14 of the Convention. The right not to be discriminated against is

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itself not at all new for European Union law. It is inherent in the general principle of equality, one of the unwritten fundamental rights which is part of the Community legal order and which is frequently used by the European Courts as a standard for the control of EU legislative and administrative measures and, indeed, as a standard applying to the Member States and to individual persons when acting within the scope of EC law.13 It is settled case-law of the European Court of Justice that “the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.”14 Given this, I will examine some of the concrete implications that the principle of non-discrimination, thus understood, may have for situations in which the linguistic rights and obligations of state authorities or private individuals are at stake.

Linguistic discrimination in access to employment and in the workplace In principle, EU law does not affect the power of the Member States to determine freely whether, and to what extent, they allow the use of a plurality of languages for public purposes. The Member States can either opt for a system of rather strict linguistic uniformity (as France does) or give wide official recognition to regional and minority languages (as do Spain, Italy and the United Kingdom).15 This is a matter left to their own choice, with which the European Union does not interfere. As a consequence, imposing proficiency in one or more particular languages as a condition of recruitment to public employment is also allowed by Community law. However, official language rules are not entirely immune from the impact of Community law: they must be applied without discrimination against European Union citizens. The fact that linguistic conditions of employment could potentially function as indirect discrimination against nationals of other EU countries was recognised early on in Regulation 1612/68 on the free movement of workers. Article 3 of the Regulation, which is still applicable today, prohibits indirect discrimination resulting from actions having as their exclusive or principal aim or effect to keep nationals of other Member States away from the employment offered. To this rule, a qualifying statement is added, namely that the prohibition does “not apply to conditions relating to linguistic knowledge required by reason of the nature of the post to be filled.” The question therefore is whether a particular requirement of linguistic proficiency is genuinely related to the function concerned or, rather, is a condition whose aim or effect is to exclude foreigners, in particular EU citizens. Thus, Article 3 of Regulation 1612/68 can be seen as a specific early embodiment



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of the general prohibition of discrimination on grounds of language inscribed in the EU Charter of Rights. Article 3 was interpreted and applied by the European Court of Justice in the Groener case, a high-profile case decided in 1989.16 Irish law imposes the requirement that candidates for a permanent post in public education should demonstrate an adequate knowledge of the Irish language. A Dutch applicant for the job, Anita Groener, having failed the test, alleged that this requirement effectively excluded EU citizens from applying for any of these jobs and was therefore a form of indirect discrimination falling under the prohibition of Article 3 of Regulation 1612/68. There seemed to be very good reasons to hold this view given the facts of the case. The job for which Ms Groener applied, that of teacher of painting in the College of Marketing and Design in Dublin, did not in fact require her to speak Irish at any time, and therefore knowledge of that language was not a functional necessity. However, the Court of Justice gave a remarkably wide interpretation to the language clause of Regulation 1612/68. Because Irish was an official language of the country, Ireland was allowed to require its knowledge from all teachers, even those who would not be called to use it in the course of their work, on condition that the required level was not set too high. The Court did not read Article 3 of the Regulation as laying down a purely functional test (i.e. is knowledge of the language necessary for the day-to-day performance of the job?), but as allowing for consideration of the broader constitutional background and the language policy priorities of the Member States. There has been much speculation about the implications of the Groener judgment, beyond the specific case of Ireland and of employment in public education.17 The judgment certainly expressed sensitivity from the side of the Court for the national identity concerns of the Member States. However, no blank check was given to the Member States and their regions. Whenever a language criterion is used in recruitment for a particular job, the suspicion arises that it may be indirectly discriminating against EU citizens. If litigation starts, it is for national courts and the ECJ to decide whether the language knowledge is actually required and, if so, whether or not it is set at a disproportionately high level. As to the latter point, the Commission recently stated that the condition, frequently used in announcements of recruitment, that candidates should be “native speakers” of a particular language, is a form of indirect discrimination against citizens of other EU countries which is prohibited by EC law.18 The scope of the prohibition of discriminatory language conditions has recently been extended in two directions. Its substantive scope has been extended from public to private employment conditions and its personal scope is, still timidly, in the process of being extended from EU citizens to other categories of foreigners. The extension of the principle of non-discrimination on grounds of nationality to

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private sector employment was probably not intended by the drafters of the EEC Treaty, but it was clearly affirmed in a judgment of the European Court of Justice, namely in the Angonese case that had been referred to it for a preliminary ruling by a court in Bolzano, Italy. Access to employment in a bank in Bolzano was made dependent upon a showing of adequate language knowledge of both Italian and German, the two official languages in South Tyrol. This, the Court found, was a direct and acceptable consequence of the minority protection regime enacted in this region of Italy (even though it concerned employment in a private bank), but the additional requirement that evidence of bilingualism could be provided only by means of a local certificate was held to be an indirect discrimination against citizens from other EU countries, and hence in breach of EC law.19 The judgment has become famous for its sweeping statement that the right to free movement has full horizontal application, i.e. that private persons are bound to respect the freedom of and must abstain from discrimination against EU citizens. As in public sector employment, language skills may only be imposed on citizens of other European Union countries by private employers to the extent that they are necessary for the performance of the function concerned. The protection against language discrimination in recruitment and conditions of employment now arguably applies to many third country nationals as well, on the basis of the Race Discrimination Directive of 2000.20 Linguistic proficiency requirements that are not justified by the nature of the job could be considered to be an indirect form of racial or ethnic discrimination in the terms of the Directive. The Race Discrimination Directive is also intended to apply horizontally; indeed, its main concern is to combat discrimination in formally private legal relations and in social life in general. So, the imposition of language conditions or requirements by private employers could amount to indirect discrimination on the grounds of race and ethnic origin. Similarly, employment conditions unduly prohibiting the use of minority languages during work could be indirect discrimination on grounds of ethnic origin.21 The material scope of the Race Directive is not limited to employment but also extends to discrimination (by both public authorities and private persons) in the fields of education, housing and social protection. The directive thereby follows the model of Regulation 1612/68 that also sets a wide scope for the protection of EU citizens against nationality discrimination. In fact, the consequences of the equal treatment principle affect the official language regime of the Member States in more subtle ways than only by requiring justification of language conditions for employment. In several rulings, the Court of Justice held that if Member States or regions provide for the right to use a minority language for public transactions (as, for example, in court proceedings), then that right should be extended to EU citizens who happen to speak that same language. Thus, an Austrian visitor



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in South Tyrol may use German in court proceedings, even though this right was only intended for the German-speaking minority of the area.22

Unequal treatment in language funding by the European Union There are two forms of linguistically differentiated funding in European Union practice today. In some cases, extra funds are allocated to funding projects promoting the use of minority or lesser used languages. In other cases, those “weaker languages” are actually treated less favourably, in budgetary terms, than the stronger languages. We will consider these two situations in turn.

Special funding for minority languages projects For many years, the European Community budget has offered some modest financial support to projects aimed at “the promotion and preservation of regional and minority languages and cultures.”23 Priority for smaller languages is also inscribed in several European Union action programmes in the cultural field, broadly defined. Thus, one of the objectives of Media 2007, the programme for the development, distribution and promotion of European films, is “to preserve and enhance European cultural and linguistic diversity.”24 The Culture 2000 programme had, among its many goals, that of “supporting the translation of literary, dramatic and reference works, especially those in the lesser-used European languages and the languages of central and east European countries.”25 This priority criterion has now disappeared from the successor programme, called Cultural Programme (2007–2013), although, in practice, not much may change because the priority criteria did not play an effective role anyway. However, this raises a question of principle, namely whether it is compatible with the prohibition of non-discrimination on grounds of language to privilege, even so modestly, the smaller languages of Europe. Could, say, the initiator of a translation project whose bid for Culture 2000 funding was rejected in favour of a competing translation project involving a lesser-used language argue that he was the victim of discrimination on grounds of language? The answer must be no. Since discrimination only occurs, according to the European Court of Justice (and all constitutional courts would agree on this point) when a differential treatment lacks good justification, and since extra funding for minority language projects is conducive to the preservation of linguistic diversity in Europe, which is a policy objective laid down in Article 22 of the Charter and also in Articles 149 and 151 of the EC Treaty, the non-discrimination principle is clearly respected in this case.

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Discrimination against non-national languages This is the inverse situation from the one discussed above, namely one in which the “weaker languages” of Europe are treated less favourably than the others by the European Union. An illustration was provided, at least until recently, by the Socrates programme in the field of education. The Socrates programme incorporated the formerly separate Lingua programme, which was dedicated to the improvement of language skills of students and pupils and to language teacher training, by means of mobility grants and the development of language learning materials. The objective of the Lingua part of the Socrates programme was “to promote a quantitative and qualitative improvement of the knowledge of languages of the European Union, in particular those languages which are less widely taught, so as to lead to greater understanding and solidarity between the peoples of the European Union and promote the intercultural dimension of education.”26 This statement could give the mistaken impression that regional and minority languages were included. In fact, the Annex of the Socrates Decision made clear that only the official languages of the European Community were covered, together with Irish and Letzeburgesch. Therefore, the special priority given to the “less widely used and less taught languages” did not refer to the regional and minority languages (such as Catalan, Basque and Welsh). This is odd, because improved knowledge of these languages seems equally able to “lead to greater understanding among the peoples of the European Union”, which was the declared underlying aim of Lingua. There was an obvious double standard here, and, arguably, discrimination on grounds of language – prohibited by Article 21 of the Charter. This has now been corrected in the new EC action programme in the field of education which has retained the objective “to promote language learning and to support linguistic diversity in the Member States”, but this time includes all languages spoken in the European Union. It remains to be seen which percentage of EC funding for language learning will effectively be spent on the non-official languages.27

The implied linguistic dimensions of other fundamental rights Apart from the two Charter provisions examined above, namely Article 21 and Article 41, and apart from Article 22 on the respect for linguistic diversity, other Charter provisions that do not mention “language” may also be relevant because they impliedly protect the use of language in a particular context. These other Charter rights may be called “instrumental language rights”.28 This point can be explained by looking briefly at the legal document from which most of the



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Charter rights stem, namely the European Convention of Human Rights. The Convention contains a provision prohibiting discrimination on grounds of language in the exercise of the rights of the Convention (which was the model for the equivalent provision of Article 21 EU Charter), and it also guarantees a right for the accused to use an interpreter if he or she cannot understand the language of criminal proceedings. However, it does not lay down general standards for the use of languages and does not contain any specific minority rights. Despite this absence of specific attention to languages and minorities, there has been, in recent years, a “burgeoning” minority rights jurisprudence of the European Court of Human Rights.29 General human rights listed in the Convention are being explored and tested by applicants from minority groups as to their implicit “minority protection” potential. Questions of language use have also been raised, though only sporadically so far. Among the general human rights that are available to everybody but have special relevance for minority language groups, there is first of all freedom of religion, protected by Article 9 ECHR and Article 10 EU Charter. This right includes, most importantly, the freedom to manifest one’s religion without state interference, and this logically includes a free choice of the language of worship. Of greater importance is freedom of expression, guaranteed in Article 10 of the Convention and in Article 11 of the EU Charter. An indication of the linguistic component of freedom of expression can be found in the European Court of Human Rights’ Ekin judgment, in which it was held that French legislation allowing for the administrative seizure of foreign publications or publications in a foreign language (as opposed to “purely French” publications) was a violation of Article 10.30 There is no doubt, in my view, that restrictions on the use of a particular language (say, Kurdish in Turkey) in private broadcasting or print media would be considered by the Court as restrictions of freedom of expression, and it is difficult to imagine which important public interest could justify, in the eyes of the European Court, a restriction of this kind. The same is true for restrictions on diffusion of songs in a particular minority language on private or public radio and TV. The reason for this is that freedom of expression does not only protect the content of what is being expressed but also the indispensable linguistic form that many expressions take. Indeed, the expression of opinions or emotions by a person who cannot use the language of her choice will necessarily be falsified or impoverished, and the content of the message will therefore be impaired as well. This interpretation of freedom of expression has been adopted, among others, by the Swiss and Canadian Supreme Courts, and by the UN Rights Committee in the Ballantyne case (see de Varennes 1996, Ch. 3), and it should be held to apply to the corresponding provision of the EU Charter.

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The European Court of Human Rights’ most remarkable ruling on the implied linguistic dimension of general fundamental rights occurred in relation to the right to education; in Cyprus v Turkey, the Grand Chamber held that the fact that the Northern Cyprus government provided Greek-language primary schooling for the Greek minority living in Northern Cyprus, but did not provide any follow-up at the secondary school level, amounted to a breach of the right to education guaranteed by Article 2 of Protocol No. 1 to the Convention (and copied with almost identical wording in Article 14 EU Charter).31 In other words, the right to education implies, in certain circumstances, a right to mother tongue education.32 So, the European Convention on Human Rights offers some meaningful protection for language rights that are ancillary to more general human rights, and that same incidental protection is inherent in the corresponding EU Charter rights, in accordance with the rule of interpretation (laid down in Article 52(3) of the Charter) that Charter rights should be interpreted in the same way as the ECHR rights on which they are based. It is not easy, though, to see the practical implications of this, given the limited scope of the EU Charter. Are there situations in which the rights delineated above could be relevant for the action of the EU institutions or for the Member States when acting within the scope of EU law? By way of illustration of the potential significance of implied protection of language use, consider the Fun Radio decision of 8 April 1998 by the Conseil d’Etat, the highest French administrative court. The case involved the compatibility with European Community law of the French radio quotas regulation, according to which at least 40% of songs broadcast on French radio stations must be chansons d’expression française. The court acknowledged that this constituted a restriction of intra-Community trade, both of the free movement of goods (music recordings) and of the free movement of services (pre-packaged music programmes). It held, however, that these restrictions were justified for reasons of national cultural policy, and that the 40% requirement was not disproportional. In doing so, the Conseil d’Etat applied the test formulated by the European Court of Justice but omitted to refer a preliminary question to the ECJ, probably for fear that the ECJ would reach a different conclusion as to the necessity of the restriction.33 The Conseil d’Etat did not acknowledge this to be a restriction of freedom of expression in addition to being a restriction of free trade. Still, it seems rather obvious that by constraining the freedom of radio stations to choose which songs to broadcast, the French law did indeed restrict their editorial freedom. This is a case which is, arguably, within the scope of Article 11 of the EU Charter and, in addition, of the general principle of Community law protecting freedom of expression. By putting the issue in a freedom of expression framework, the balancing of values (free speech v cultural policy) would have required some extra care on the part of the French court, and



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perhaps the principle of proportionality would not be as easily satisfied as it was. From this example, it can be seen that the implied linguistic content of some of the general rights contained in the Charter could play a role, albeit a rather limited one, in the protection of linguistic diversity.

Notes 1. On which, see the contribution by Xabier Arzoz. 2. On the origins of this right to good administration, see Kanska (2004). 3. Article 21, third indent: “Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.” The “bodies or institutions referred to” are the European Parliament, the Commission, the Council, the Court of Justice, the Court of Auditors and the Ombudsman. Article 314, the last article of the EC Treaty, states which language versions of the Treaty are to be authentic versions. This Article 314 was last amended by Article 18 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded (OJ 2005, L 157/203); the languages listed are: Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish. 4. Journal Officiel des C.E., 1958, 385. The Regulation was adopted pursuant to Article 217 EEC Treaty (now Article 290 EC Treaty), which states: “The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the rules of procedure of the Court of Justice, be determined by the Council, acting unanimously.” 5. An exception was made for Irish. There is an authentic version in Irish of the founding Treaties, but Irish was not included among the official and working languages when Regulation No 1 of 1958 was modified upon the accession of the UK, Ireland and Denmark (Section XIV of Annex I to the Act of Accession, OJ 1972, L 73/122). As for Lëtzeburgesch, it became an official language of Luxembourg many years after that country helped found the European Communities, and this language was not subsequently added to the list of Regulation No 1. 6. See the Articles 28 and 41 EU Treaty. 7. Council Regulation 1/58, as last amended by Council Regulation 1791/2006 of 20 November 2006, OJ 2006, L 363/1, at p. 80. 8. On the language regimes of international organisations, see Tabory (1980) and, for a brief overview, Schermers & Blokker (1995). 9. For views of actual linguistic practice and recent reforms, see for example: de Elera-San Miguel Hurtado (2004: 112–121) and Kraus (2004: 141–159). 10. Court of First Instance, Case T-120/99, Christina Kik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), judgment of 12 July 2001; in appeal: European Court

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of Justice, Case C-361/01 P, Christina Kik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), judgment of 9 September 2003. 11. Court of First Instance, Christina Kik judgment, para. 63. 12. Council of the European Union, Use of languages in the Council in the context of an enlarged Union, doc. 15334/1/02, REV 1, of 6 December 2002. 13. For a recent case in which the general principle of equality was interpreted as a source of obligations for the Member States and for individual persons, see ECJ, C-144/04, Werner Mangold v Rüdiger Helm, judgment of 22 November 2005. 14. Among the many judgments in which this phrase is repeated (sometimes with slight variations), is Case C-210/03 Swedish Match [2004] ECR I-11893, para. 70. 15. For a recent survey of the diverse approaches to this question in the constitutional law of European states, see Ruiz Vieytez (2005). 16. ECJ, Case 379/87 Groener v Minister for Education and the Dublin Vocational Education Committee [1989] ECR 3967. 17. For a detailed analysis of the implications of the judgment, see Nic Shuibhne (2002: 80–104). 18. See Commission Communication of 11 December 2002, Free Movement of Workers – Achieving the Full Benefits and Potential, COM(2002) 694, at p. 7: “The Commission considers that while a very high level of language may, under certain strict conditions, be justifiable for certain jobs, a requirement to be mother tongue is not acceptable.” 19. ECJ, Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-4083. 20. Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000, L 180/22. Third country nationals are within the personal scope of this directive, although only half-heartedly; see Brown (2001–2). 21. An example from practice is the decision of the Dutch Equal Treatment Commission (Commissie Gelijke Behandeling) of 28 March 2000. It held that the internal rules of firms that impose the use of Dutch as the language of communication among the workforce could be disproportional and therefore discriminatory. This is the case, for example, where no linguistic conditions have been formulated upon recruitment for the job (the text of the decision is on the web site of the CGB, www.cgb.nl/oordelen/tekst/2000–15). 22. ECJ, Case 137/84 Ministère Public v Mutsch [1985] ECR 2681; Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7650. See the comments by Nic Shuibhne (2002: 71–79, 278–284) and by Palermo (2001). The second of these two Court cases, like the Angonese case decided by the ECJ two years later, dealt with the complex language regime of the Italian province of South Tyrol. Generally, on the EU-compatibility of South Tyrol language laws, see Toggenburg (2001). 23. I refer to other contributions in this volume for further details about the evolution of these funding programmes.



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24. Decision 1718/2006 of 15 November 2006, OJ 2006, L 327/12, Article 1. 25. Decision 508/2000 of 14 February 2000, OJ 2000, L 63/1, Annex II, I b. 26. Decision 253/2000 of 24 January 2000, OJ 2000, L 28/1, Article 2, sub b). 27. Decision 1720/2006 of 15 November 2006 establishing an action programme in the field of lifelong learning, OJ 2006, L 327/45. 28. This concept is proposed and elaborated by Rubio-Marín (2003). 29. The terms are borrowed from Gilbert (2002). 30. ECTHR, Association Ekin v France, judgment of 17 July 2001 (Appl. no. 39288/98). 31. Cyprus v Turkey, judgment (Grand Chamber) of 10 May 2001, no. 25781/94, para. 278. 32. The European Court of Human Rights had taken a rather more restrictive view in the Belgian Linguistics case which it decided in the early years of its existence; on the interpretation of the right to education in that case, see Milian-Massana (1994: 186–202). 33. Conseil d’Etat, 8 April 1998, Sté SERC Fun Radio, in Revue française de droit administratif (1999) at p. 209 (with the interesting conclusions of the commissaire Sylvie Hubac at p. 194).

References Aziz, Miriam. 2004. “Mainstreaming the Duty of Clarity and Transparency as part of Good Administrative Practice in the EU”. European Law Journal 10: 3.282–295. Brown, Christopher. 2001–2. “The Race Directive: Towards Equality for All the Peoples of Europe?”. Yearbook of European Law 21.195–227. de Elera-San Miguel Hurtado, Alvaro. 2004. “Unión Europea y Multilingüismo”. Revista Española de Derecho Europeo 9.85–135. de Varennes, Fernand. 1996. Language, Minorities and Human Rights. The Hague & Boston: Martinus Nijhoff. de Witte, Bruno. 2001. “The Legal Status of the Charter: Vital Question or Non-Issue?” Maastricht Journal of European and Comparative Law 8.1.81–89. Gilbert, Geoff. 2002. “The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights”. Human Rights Quarterly 24.736–780. Kanska, Klara. 2004. “Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights”. European Law Journal 10: 3.296–326. Kraus, Peter A. 2004. Europäische Öffentlichkeit und Sprachpolitik. Frankfurt: Campus. Milian-Massana, Antoni. 1994. Derechos lingüisticos y derecho fundamental a la educación. Madrid: Civitas. Nic Shuibhne, Niamh. 2002. EC Law and Minority Language Policy. Culture, Citizenship and Fundamental Rights. The Hague & London: Kluwer Law International. Palermo, Francesco. 2001. “The Use of Minority Languages: Recent Developments in EC Law and Judgments of the ECJ”. Maastricht Journal of European and Comparative Law 8: 3.299–318.

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Rubio-Marín, Ruth. 2003. “Language Rights: Exploring the Competing Rationales”. Language Rights and Political Theory ed. by Will Kymlicka & Alan Patten, 52–79. Oxford: Oxford University Press. Ruiz Vieytez, Eduardo Javier. 2005. “Lenguas y constitución. Una visión del derecho lingüístico comparado en Europa”. Revista Vasca de Administración Pública 72.231–275. Schermers, Henry & Niels Blokker. 1995. International Institutional Law. 3rd ed. The Hague & Boston: Martinus Nijhoff. Tabory, Mala. 1980. Multilingualism in International Law and Institutions. Alphen & Rockville: Sijthoff & Noordhoff. Toggenburg, Gabriel. 2001. “Diritto comunitario e tutela delle minoranze in provincia di Bolzano. Due aspetti inconciliabili di un (unico) sistema?” L’ ordinamento speciale della Provincia autonoma di Bolzano ed. by Joseph Marko, Sergio Ortino & Francesco Palermo, 139–194. Padova: CEDAM.

chapter 9

Languages that are official in part of the territory of the Member States Second-class languages or institutional recognition in EU law? Antoni Milian-Massana

In the past several years some new features have been introduced to the rules governing the languages of the institutions of the European Union. These features principally affect two types of languages: languages whose status is recognised by the constitutions of the Member States on part of their territory; and languages which, in accordance with their constitutional order, enjoy official status in part of the territory of the Member States. This chapter deals with those features. Union recognition of any of those languages is rather limited and does not constitute the attribution of newly-coined institutional status that would add to the status of official language and working languages and languages of the Treaties. However, the merit of recognition consists, on the one hand, in the Union’s having distinguished between those languages and the other regional or minority languages, and on the other hand, in having created the embryo of a future new institutional status. In any case, the basis of the rules governing the languages of the Union, explained in synthesis in this text, remains unaltered.

1. Introduction In the past several years some new features have been introduced to the rules governing the languages of the institutions of the European Union. They affect two types of languages: languages whose status is recognised by the constitutions of the Member States on part of their territory, and languages which, in accordance

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with their constitutional order, enjoy official status in part of the territory of the Member States. These new features, while very limited in scope, are interesting because it is the first time the Union has expressed concern for these languages. In this way, the European Union system distinguishes them from the other “regional or minority” languages. In this chapter I will point out these new features, explaining their origin, content and scope. I do not intend to present the rules governing the languages of the institutions of the European Union, since these rules have already been the subject of study, from several approaches and perspectives, on previous occasions (for example, Berteloot 1999; Lopes 1999; Heusse 1999; Kraus 2000; Fenet 2001; Ortolani 2002; Agirreazkuenaga 2003; Nic Shuibhne 2004; de Witte 2004b; Creech 2005; Fabeiro Hidalgo 2005; for earlier essays on the same subject, Coulmas 1991; Labrie 1993) and I myself have had the opportunity to study and analyse them in detail (Milian-Massana 1995; 2000: 161–202; 2002; 2003; 2004; 2005a). The issue I intend to address now is that of recognition, in the framework of the European Union, with respect principally to those languages which, in accordance with their constitutional order, are official in only a part of the territory of the Member States, this being a more modest study, but nevertheless necessary to obtain an overall view of the rules governing the languages of the Union. The following is therefore intended to be complementary to those studies more general in approach and of a more ambitious nature. To understand fully the character of the recognition given to those languages, we must first remind ourselves of the different levels of recognition so far established by the European Union regarding languages. We can make a distinction between languages that have obtained institutional recognition and those which have not achieved it (Sections 2 and 3). The circumstances that have favoured the recent modifications in the rules governing the languages of the institutions will be reviewed below (Section 4). Finally, the recognition given to languages which, in accordance with their constitutional order, enjoy official status in part of the territory of the Member States will be explained and analysed (Section 5). A conclusion will be drawn at the end of the chapter.

2.

Languages which enjoy institutional recognition

At present, there are two levels of institutional recognition among the languages of the European Union: the status of official languages and working languages, and the status of languages of the Treaties. This differentiation has now lost significance since Irish has been recognised recently as official language and working language.



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2.1 Official languages and working languages of the institutions of the Union Neither the Treaties establishing the European Communities, nor the Treaty on European Union, nor the treaties that have modified them, have determined the official languages and working languages of the institutions of the Union. In fact, as far as languages are concerned, Community Treaties mostly limit themselves to listing the languages in which versions of the treaty are equally authentic (see Section 2.2 below) and specifying the institution authorized to determine the rules governing the languages of the institutions and to establish the procedure to follow according to those specifications. With regard to the institution responsible and the corresponding procedure, Articles 290 of the EC Treaty and 190 of the Euratom Treaty specify that: The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.1

Therefore, it is the Council, being the institution representing national interests, that is responsible for determining the rules governing the languages of the institutions. Those rules must be adopted unanimously, and therefore the consent of each and every Member State is required. The Council determined the rules governing the languages of the institutions in Council Regulation No 1 of 15 April 1958.2 Those rules grant certain languages the status of official languages and working languages of the institutions of the European Union. At present, there are 23 official languages and working languages of the institutions, according to Article 1 of Council Regulation No 1, as last amended by Council Regulation (EC) No 1791/2006 of 20 November 2006: The official languages and the working languages of the institutions of the Union shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.3

These 23 languages do not, of course, constitute all the historical and traditional European languages spoken in Member States today. In fact, there are many more (see Section 3 below). Currently around two thirds have no institutional recognition. This situation leads us to ask what criteria the Council has used to grant the status of official language and working language to some languages, and to refuse it to others. The preamble to Council Regulation No 1 refers to the criterion followed by the Council establishing that “each of the […] languages […] is recognised as an official language in one or more of the Member States”. Clearly, the preamble is

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ambiguous as the expression “an official language in one or more of the Member States” may be interpreted in two ways: as an official language in all the territory of one or more Member States, or as an official language either in part of or in all the territory of one or more Member States. We could even argue that the use of the preposition “in”, instead of the preposition “of ” favours this second interpretation. However, in view of the practice followed by the Council, we must infer that it has chosen the first interpretation, granting the status of official language and working language of the institutions solely to those languages which are official languages in all the territory of a Member State or which are official languages of the central institutions of a Member State. This is why languages such as Catalan, Galician or Basque, which are official languages in part of the territory of a Member State but do not have recognition in the central institutions, have not acquired the status of official language and working language. However, the general criterion was subject to two exceptions: the case of Irish and the case of Lëtzeburgesch. Both are official languages in all the territory of a Member State but have not enjoyed the status of official language and working language. When Ireland joined the European Communities in 1973, it renounced insistence that Irish be given the status of official language and working language, on condition that at least the status of language of the Treaties be granted to it, a status which was in fact recognised (see Section 2.2 below). Lëtzeburgesch, on the other hand, was not an official language in Luxembourg when this State, as a founder member, joined the European Communities.4 As of 1 January 2007, however, the Irish language now enjoys the status of official language and working language. The non-recognition of Irish and Lëtzeburgesch introduced a modulation to the general criterion adopted by the Council to determine the official languages and working languages of the institutions. Given that Irish and English are official languages in Ireland (Article 8 of the Constitution of Ireland)5 and that French, German and Lëtzeburgesch are official languages in Luxembourg (Law of 24 February 1984 on the language regime),6 the modulation to the general criterion, which has never been specified as such, can be formulated as follows: When a Member State recognises more than one official language for all its territory or for the central institutions of the State, and one of these languages is already an official language and working language of the Community institutions because it is recognised as official language in another Member State, the other languages do not acquire that status (Milian-Massana 1995: 490; 2004: 220). However, recently this modulation was partially removed with the recognition of Maltese. With the accession of Malta to the European Union, Maltese has acquired the status of official language and working language of the institutions of the European Union, in spite of the fact that both Maltese and English are official



Chapter 9.  Languages that are official in part of the territory of the Member States 195

languages in all the territory of Malta (Section 5 of the Constitution of Malta).7 The modulation has ceased to apply to the Irish language as of 1 January 2007, the date on which it acquired, together with the status of language of the Treaties, the status of official language and working language of the institutions (see below).8 Therefore, as of that date, the modulation applies only to Lëtzeburgesch. What legal effects result from the status of official language and working language? Council Regulation No 1 is not restricted to determining the official languages and working languages of the institutions: it also regulates the legal effects of this status. These effects are as follows: first, official languages are languages in which individuals and Member States can and must draft documents to be sent to institutions, and vice versa (Articles 2 and 3);9 second, regulations and other documents of general application must be drafted in all the official languages (Article 4); and, third, the Official Journal of the European Union must be published in all the official languages (Article 5). Some effects of Article 4 have been the object of a temporary derogation (for a period of three or four years) in the case of the Maltese language.10 Similar temporary derogations have also been established with regard to the Irish language (see Section 5.2). As long as official languages are also working languages, these languages must be used in the internal activity of the institutions (Article 6).11 Council Regulation No 1 is limited to granting certain languages the status of official language and working language of the institutions. There is no other linguistic status foreseen in the Regulation from which other languages can benefit. Official languages and working languages are official languages and working languages of the institutions, and this is why the rules governing languages may be different in the case of bodies and agencies, which, as we are already aware, lack the character conferred on institutions.12 This is the case, for example, with the European Central Bank or Office for Harmonization in the Internal Market (Trade Marks and Designs) (Milian-Massana 2002: 67–71, 2004: 229–233).13 According to the mandate foreseen in Articles 290 of the EC Treaty and 190 of the Euratom Treaty, Council Regulation No 1 applies to all institutions except the Court of Justice.14 The languages to be used in the proceedings of the Court are laid down in Articles 29 to 31 of its Rules of Procedure.15 However, an amendment introduced by the Treaty of Nice to Articles 290 of the EC Treaty and 190 of the Euratom Treaty states that the rules governing languages must be adopted in the Statute of the Court of Justice. When those rules have been adopted in the Statute, they will enjoy Treaty status.16 For the moment, Article 64 of the Statute of the Court transitorily assures that character and clarifies that “the provisions of the Rules of Procedure of the Court of Justice and of the Rules of Procedure of the Court of First Instance governing language arrangements shall continue to apply”. In reality, those provisions, with the adaptations required by the special

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characteristics of the jurisdictional activity, closely follow those established for the other institutions. The languages recognised as a language of a case are the 23 official languages and working languages. The number of official languages and working languages recognised in the institutions may seem surprising. This considerable number of languages responds to the need to guarantee legal certainty,17 as well as the principle of equality and the principle of non-discrimination (Isaac & Blanquet 2001: 102). Recognising that the languages enjoying official status in all the territory of the Member States or in their central institutions constitute official languages and working languages of the European institutions, has the effect of guaranteeing that, anywhere in the territory of the Union, one of the official languages of the Union coincides with the language (or one of the languages) which, according to the state’s internal legal system, is official in that place. In this way, there will always be, at least formally, an official language of the Union which will be comprehensible and spoken by its citizens. This is the only way to guarantee communication between all citizens of the Union and its institutions, and it is the only way to ensure publication in the Official Journal of the European Union of regulations and other documents of general application capable of producing a direct applicability or a direct effect, in a comprehensible way for all the citizens of the Member States. In short, the large number of official languages is due to a need for legal certainty and does not necessarily indicate a desire for multilingualism. A different issue is the number of working languages, which could certainly be considerably reduced without affecting the rights of citizens. This is in fact precisely what happens in practice. The only official languages not needing recognition in order to guarantee legal certainty are Maltese and Irish, as English is official in Malta and Ireland, and all or the majority of citizens of both States are fluent in it. Therefore, only the recognition of Maltese and Irish could be construed as clearly expressing an intention to favour multilingualism. Recognition of some or all the languages which enjoy official status in part of the territory of the Member States, taking advantage of the ambiguity already indicated in the preamble of Council Regulation No 1, would also reflect that intention.

2.2 The languages of the Treaties The languages of the Treaties are the languages in which the text of Community Treaties is equally authentic. All treaties list them in their last article – such as, for example, Article 314 of the EC Treaty, Article 53 of the Treaty on European Union, Article 225 of the Euratom Treaty, Article 15 of the Treaty of Amsterdam, Article 13 of the Treaty of Nice, or Article IV-448(1) of the Treaty establishing



Chapter 9.  Languages that are official in part of the territory of the Member States 197

a Constitution for Europe.18 These articles must be read in connection with Article 61 of the 2003 Act of Accession and Article 60 of the 2005 Act of Accession. The languages of the Treaties are the current 23 official languages and working languages. The status of languages of the Treaties entails three consequences: first, the right to invoke before the courts the versions of the Community Treaties drawn up in those languages, given that “the texts in each of these languages” are “equally authentic”; second, automatic inclusion of languages of the Treaties in Community linguistic programs, and, third, the fact that every citizen of the Union may write to any of the institutions (the European Parliament, the Council, the Commission, the Court of Justice or the Court of Auditors) or to some bodies (the Ombudsman, the Economic and Social Committee and the Committee of the Regions) in any one of the languages of the Treaties and have an answer in the same language (Article 21 of the EC Treaty). In reality, Irish was the only one of the languages of the Treaties which benefited from this linguistic status. This was because the other languages already benefited from the second and third legal consequence, owing to the fact that these two consequences are included in the status of official language and working language. We should recall that the third consequence, which is undoubtedly the most significant, was introduced relatively recently, in 1999, by the Treaty of Amsterdam,19 and conferred on Irish, which was the language that in effect benefited from it, a quasi-official status as language of the Treaties. Since then, the only difference between the status of official language and the status of language of the Treaties was that the regulations, other documents of general application and the decisions of the Court of Justice and of the Court of First Instance had to be drafted in the official languages, but did not have to be drafted in the language of the Treaties [Articles 4 and 5 of Council Regulation No 1, Article 30(2) of the Rules of procedure of the Court of Justice, and Article 36(2) of the Rules of procedure of the Court of First Instance]. Therefore, until 1 January 2007 the regulations, other documents of general application and the decisions of the Court of Justice had been neither drafted nor published in Irish.20 However, there were Official Journals published in Irish, such as those journals reproducing the authentic Irish version of the Treaties and the Rules of procedure of the Court of Justice. Those journals drafted in Irish were initially foreseen as a completion of Article 5 of Council Regulation No 1, in Regulation (EURATOM, ECSC, EEC) No 857/72 of the Council of 25 April 1972 providing for special editions of the “Official Journal of the European Communities”.21

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3.

Languages without institutional recognition

The number of languages traditionally spoken in the European Union is higher than the 23 languages which we have already considered and which benefit from legal status. Although there is no consensus on the exact number (there is not always agreement as to what constitutes a language and what is merely a variant of another language), the number of languages historically spoken in the Union is currently around 68 (according to data provided by the Euromosaic study, carried out by the European Commission,22 and including the 23 languages which benefit from legal status). Since there are only two institutional statuses for languages in the European Union legal order, that of official language and working language, and that of language of the Treaties, this results in a situation whereby two thirds of the languages traditionally spoken in the European Union do not benefit from institutional recognition. While it is true that the number of speakers of these languages without institutional recognition, known as “regional” or “minority” languages by European Community law (except for Lëtzeburgesch), is normally small, this is not always the case. In some cases the number is even higher than the one corresponding to those who speak official languages and working languages. Therefore, a lack of institutional recognition of “regional” or “minority languages” is not always justified. In this respect, the case of Catalan is paradigmatic, since the number of its speakers, over seven million, is indeed higher than the speakers of nine of the 23 official languages and working languages. The recognition provided by European Community/European Union law for languages other than the 23 languages enjoying institutional status is very limited, consisting of five elements: 1) numerous resolutions of the European Parliament encouraging their use, promotion and preservation; 2) their incorporation in some European programmes and plans (for example, they are included in Promoting Language Learning and Linguistic Diversity: An Action Plan 2004 – 2006,23 though they have been systematically excluded from the principal language learning programmes (such as the so-called “Actions” known as Lingua and Comenius, which are part of the Socrates Programme);24 3) contribution to financial support of the European Bureau for Lesser-Used Languages and the Mercator research and documentation centres; 4) submission of studies and reports on regional or minority languages; and 5) provision of some modest financial support to promote and safeguard regional and minority languages, dialects and cultures (de Witte 2004a: 118–121). Finally, all languages traditionally spoken in the European Union, which includes also all regional or minority languages, benefit from the Union’s duty to respect linguistic diversity – a duty specified in Article 22 of the Charter of fundamental rights of the European Union,25 which states that “The Union shall respect



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cultural, religious and linguistic diversity” (emphasis added). But it is not clear whether the duty of respecting linguistic diversity has important implications for regional or minority languages – for three reasons: (1) because of the difficulty of deducing concrete measures from the general statement of Article 22, although even Article 22 “does not explicitly exclude an understanding of ‘respecting linguistic diversity’ as embracing also a power to take positive measures”;26 (2) because of the Union’s limited spheres of competence to carry out a policy promoting linguistic diversity, and (3) because the Charter of fundamental rights of the European Union has little effect since it has not been included in the Community Treaties. Probably the main impact of European Union law aimed at protecting the regional and minority languages has occurred indirectly – by means of political criteria required to become a member of the European Union, at the time of the two last enlargements. In fact, the European Commission reviewed progress on the situation of minorities in candidate countries on the basis of Articles 49 and 6(1) of the Treaty on European Union, as interpreted by the Copenhagen criteria of 1993 (Hoffmeister 2004). These criteria explicitly mention the “respect for and protection of minorities”, and the review has accordingly obliged the Baltic States and certain eastern and central European countries to make concessions to their linguistic minorities (see, among others, Pentassuglia 2001, Hoffmeister 2004).27 In this way, Community action was added to the actions implemented by the Council of Europe28 and the Organisation for Security and Co-operation in Europe (OSCE) (Thio 2003). European Community law has almost always treated the group of languages lacking institutional recognition homogeneously, in spite of their differing realities. We can only underline a peculiarity for Lëtzeburgesch, and a few specific references on the language of the Sami people and on Catalan. The singularity of Lëtzeburgesch lies in its automatic inclusion in all language learning programmes of the Union (see Note 24 above). As is specifically justified in Lingua and Comenius, this inclusion is due to the fact that Lëtzeburgesch is “a language spoken throughout the territory of Luxembourg”; that is, a language recognised in all the territory of the Member State (Luxembourg). As we have seen, Lëtzeburgesch is the only official language in all the territory of a Member State that lacks official status within the Union. In the case of the language of the Sami people, the particularity consists in the specific recognition in European Community law that “Sweden and Finland are committed to preserving and developing the means of livelihood, language, culture and way of life of the Sami people” [Preamble of Protocol No 3 annexed to the 1994 Act of Accession as adjusted by Decision of the Council of the European Union of 1 January 1995.29 Emphasis added], although with this recognition in the Protocol we cannot infer concrete or direct

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measures for the Sami language. The specific compromise made by the Union in this Protocol concerns the “exclusive Sami rights linked to their traditional means of livelihood” (Article 2). In the case of the Catalan language, the Resolution on languages in the Community and the situation of Catalan was adopted by the European Parliament on 11 December 1990 in response to petitions made by the Catalan Parliament and the Parliament of the Balearic Islands that Catalan be recognised as an official language of the European institutions. The European Parliament was not the institution responsible for that recognition, since, according to the Treaties, the rules governing the languages should be determined by the Council. However, in the resolution adopted by the Parliament the Council was not requested to recognise Catalan as an official language of the institutions. The resolution limits itself to calling on the Council and the Commission to take the necessary steps to achieve the following objectives: – the publication in Catalan of the Community’s treaties and basic texts; – the use of Catalan for disseminating public information concerning the European institutions in all the media; – the inclusion of Catalan in the programmes set up by the Commission for learning European languages; – the use of Catalan by the Commission’s offices in its written and oral dealings with the public in the autonomous communities in question.30 The first, second and fourth objectives have been quite satisfactorily fulfilled; however, this is not the case with the third one, as the inclusion of Catalan in Community programmes related to the learning and improvement of European languages has been systematically refused. A decision of the Committee on Petitions of the European Parliament, adopted on 26 and 27 January 1993, stipulated that the Galician and Basque languages must receive the same treatment as the Catalan language (Agirreazkuenaga 2003: 37). The Basque Parliament had agreed on 21 February 1992 to demand that the European Parliament confer on Basque the status of official language of the Community institutions. The European Union has only recently begun to make distinctions in a structured way within the heterogeneous group of languages without institutional recognition, taking into account languages other than the languages referred to in Council Regulation No 1, which enjoy official status in all or part of the territory of the Member States (see below).



4.

Chapter 9.  Languages that are official in part of the territory of the Member States 201

The 2004 enlargement and the Treaty establishing a Constitution for Europe

The accession in 2004 of ten new States in a European Union composed of fifteen members, and the preparation of the Treaty establishing a Constitution for Europe were two events whose significance offered a unique opportunity to reflect on the bases of the European Union as well as on the convenience of its amendment. There were many questions under discussion. Nevertheless, the rules governing languages attracted very little attention. Other than some partial or marginal initiatives, there has been little general reflection on the part of the institutions about the linguistic principles and criteria of the Union. Perhaps this is the reason why the amendments made to the rules governing the languages have not been very significant. Neither the Treaty concerning the accession, done in Athens on the 16 April 2003, nor the Act of Accession attached to it, nor the Treaty establishing a Constitution for Europe (even if it enters into force),31 was able to modify the basis of the rules governing the languages. Only Maltese, as we are already aware, has acquired the status of official language and working language of the institutions of the European Union, in spite of the fact that both Maltese and English are official languages in all the territory of Malta. The recognition of Maltese favoured Irish, hitherto only a language of the Treaties, but enjoying as of 1 January 2007 the status of official language and working language. The other new features foreseen, as interesting as they may seem, do not affect the core of the rules governing languages. Among these new features, all contained in the Treaty establishing a Constitution for Europe, we note the inclusion among the Union’s objectives of the aim that the Union “shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced” [Article I-3(3). Emphasis added]. This article must be considered in connection with Article II-82, which incorporates Article 22 of the Charter of fundamental rights of the European Union into the Treaty establishing a Constitution for Europe.32 We should also mention Articles III-280 and III-315(4), since the former introduces a requirement of a mere qualified majority in the Council for the adoption of acts in the area of culture, thereby favouring Union action in this field. The second article provides for better protection of cultural and linguistic diversity, stating that the Council shall act unanimously on the negotiation and conclusion of agreements on trade in cultural and audiovisual services, “where these agreements risk prejudicing the Union’s cultural and linguistic diversity”. The Treaty establishing a Constitution for Europe was probably not the most appropriate legal venue for laying down the rules governing the languages of the Union’s institutions. Nevertheless, since its signature there seems to have been

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little will to substantially amend Council Regulation No 1 in this regard. The requirement of unanimity, maintained by the Treaty establishing a Constitution for Europe (Article III-433), will not favour such a process.33 The institutional changes created by the accession of the ten new Member States and the drafting and adoption of the Treaty establishing a Constitution for Europe encouraged some language communities to lobby for linguistic status, or for amelioration of the status they already had. Catalan is a case in point. Catalonia has expressed its desire for Catalan to acquire the status of language of the Treaties,34 and to obtain the status of official language of the Union.35 There will be voices claiming a status for Basque.36 Ireland, after being encouraged by the recognition of Maltese, will request for Irish the status of official language and working language of the institutions of the Union.37 It is no surprise that Catalonia is taking advantage of the occasion to argue for linguistic status for Catalan. The lack of European recognition of Catalan, despite the fact that in 2004 it had more speakers than eight of the twenty official languages and working languages and more, of course, than Irish, constitutes an unfair and disproportionate situation, forming the basis for the Catalonian case. The discriminatory nature of European Community law towards the Catalan language has been so apparent that institutions have not even felt embarrassed in excluding it systematically from Lingua and Comenius, activities aimed at promoting the learning of European languages, while simultaneously admitting languages of non-Member States of the Union which are in addition spoken by fewer people (for example, Norwegian and Icelandic: see Note 24, above). We should also note the harmful impact, arising from the supremacy of European Community law, of this lack of Community recognition for Catalan in Catalonia, for example in the partial abolition, in some cases, of its status as co-official language in Catalonia (Milian-Massana 2002: 74–76; 2003: 42–45). Another example is the situation brought about by Community secondary legislation, which, providing only for official languages of the Union, has proved an obstacle preventing Catalan from benefiting from measures that are normally admitted for official languages by regulations and directives. Such measures, given the high degree of the use of Catalan, are needed for its safeguard. The linguistic provisions relating to the labelling of foodstuffs and other products (Milian-Massana 2005b) constitutes a paradigmatic example. Catalan is not a minority language; because of its dynamism, it should enjoy as far as possible the measures adopted for non-minority languages. The treatment of Catalan as a minority language favours its assimilation. It will be thanks to Catalan demands, partly to Basque ones, and to a lesser degree, Galician ones – all of them assumed, only partially, by the Spanish Government – that the European Union will finally concede specific treatment in favour of official languages in part of the territory of the Member States.



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The Parliament of Catalonia urged the Catalan Government to request the Spanish Government, on the occasion of the process of negotiation of the final drafting of the European Constitution, to include Catalan among the treaty languages of the Treaty establishing a Constitution for Europe.38 This request was not fulfilled, but instead gave rise to paragraph 2 of Article IV-448 of the Treaty. At the same time, pressure was brought to bear on the Spanish Government to promote modification of Council Regulation No 1 in order to recognise Catalan, Basque and Galician as official languages of the Union’s institutions.39 Neither did this demand prosper. The initiative culminated in the Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union.40 We will now look at these developments in more detail.

5.

The recognition of languages that are official in part of the territory of the Member States

It has been Article IV-448(2) of the Treaty establishing a Constitution for Europe, and the Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union, that have enabled official languages in part of the territory of the Member States to receive particular consideration, differentiating them from other languages lacking institutional recognition. This systematized recognition, owing to its limited applicability and the limitations attached, does not constitute the attribution of a newly-coined institutional status next to those of official language and working language and language of the Treaties. We would, however, be faced with the embryo of a future new institutional status. To understand the substance of this recognition, we will first examine Article IV-448(2) of the Treaty establishing a Constitution for Europe, and then analyse the Council Conclusion of 13 June 2005.

5.1

Article IV-448(2) of the Treaty establishing a Constitution for Europe

Article IV-448(2) of the Treaty establishing a Constitution for Europe states the following: This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such

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translations shall be provided by the Member States concerned to be deposited in the archives of the Council.41

As indicated earlier, the origin of this paragraph lies principally in the intention expressed by Catalonia to incorporate Catalan into the languages of the Treaty establishing a Constitution for Europe; that is to say, as one of the Constitution’s languages listed in Article IV-10 of the Draft Treaty [at present, Article IV-448(1) of the Treaty].42 The aim was to ensure a version of the Treaty in Catalan which was “equally authentic” and, more importantly, to bring about a situation in which citizens of the Union could enjoy the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in the Catalan language and to obtain a reply in the same language. This right was possible owing to the fact that Article 8(2) of the Draft Treaty [at present, Article I-10(2)(d) of the Treaty] guaranteed it in relation to “any of the Constitution’s languages”, inspired by the third paragraph of Article 21 of the EC Treaty. Furthermore, if Catalan acquired the status of language of the Treaty, it would no longer be possible to avoid its incorporation in Lingua and Comenius, activities of the Socrates Programme. Catalonia has expressed its aspirations more intensively since April 2004, taking advantage of the increased sensitivity of the new Spanish government, following the general elections of 14 March 2004. This explains why the Spanish government raised the linguistic question during the last phase of the Conference of the Representatives of the Governments of the Member States. The proposal submitted by the Spanish government, which included the Catalan, Galician and Basque language, was somewhat more limited than the Catalan aspiration. In fact, the Spanish government did not request the status of language of the Treaty for Catalan or the other two languages, but only requested recognition of the more important consequence issuing from such status. That is to say, it proposed that the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Constitution’s languages and to obtain a reply in the same language, as established in the Draft Treaty, be also extended to any other language designated by the Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. With this formula, the Spanish government included Catalan, Galician and the Basque language, given that those three languages, in accordance with the Spanish constitutional order, enjoyed full official status in part of Spanish territory.43 Furthermore, with the requirement “in accordance with their constitutional order”, the Spanish proposal sought to limit the extension of the right recognised in Article 8(2) of the Draft Treaty to a limited number of languages.



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The Spanish request, which led to the modification of Article 8(2) of the Draft Treaty, was also accompanied by another proposal. Spain proposed the incorporation of a second paragraph into Article IV-10, which would establish the mandate of translating the Treaty into any other languages (as determined by Member States) from among those languages which, in accordance with their constitutional order, enjoy official status in all or part of their territory. While the first paragraph of Article IV-10, which remained untouched, determined the authentic texts, the new second paragraph permitted some official translations, subsequent to the signing of the Treaty, which consequently were not part of the “single original”, and thus lacked the value of authentic texts.44 In this way, the languages other than the Constitution’s languages benefiting from Article 8(2) would be able to have an official text of the Treaty, but not an authentic text. Completing the Spanish proposal were “A Draft Protocol on Article I-8”, that took into account the technical and financial support needed to make possible the full implementation of the linguistic rights provided by Article 8(2), and a “Declaration” to be included in the Final Act. The Spanish proposal made little progress. The subsequent proposal of the Irish Presidency did not include amendment of Article 8(2) and merely proposed that the second paragraph of Article IV-10 be incorporated into the Draft Treaty – a paragraph which became Article IV-10(2) – and the Declaration, both texts with some amendments.45 However, although the wording of the second paragraph and of the Declaration submitted by the Irish Presidency closely followed that of the Spanish proposal, a significant change had been made. In the Presidency proposal, each Member State concerned took responsibility for translating the Treaty into the languages of Article IV-10(2), instead of leaving it to the Union. In short, Article IV-10 no longer referred to “Authentic texts and official translations” (emphasis added), but to “Authentic texts and translations”. Article IV10(2) would undergo no further modification and would therefore be included in the final text of the Treaty, as proposed by the Irish Presidency. A new paragraph was subsequently added to the Declaration as modified by the Irish Presidency. This new paragraph, which was later proposed by the Presidency,46 included some of the modifications that Spain wished to introduce into the Declaration, once the Presidency had amended the initial Spanish proposal in its entirety. The Declaration, according to the second proposal of the Presidency, would undergo hardly any modification. The only changes would constitute the substitution of the expression “linguistic diversity” by “these and other languages” (emphasis added)47 and the deletion of the word “official” in the expression “official translations”48 – a deletion which was consistent with the fact that the official character of translations had been deleted in Article IV-10(2). The first of the two modifications, inspired by the paragraph proposed by Spain, partially determines the

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languages which according to the Declaration must enjoy the special attention that the Union “will continue to pay” to the languages. It should be borne in mind that “these” languages are the languages mentioned in Article IV-448(2) [former Article IV-10(2)]. The final text of the Declaration – Declaration No 29, on Article IV-448(2), annexed to the Final Act – reads as follows: The Conference considers that the possibility of producing translations of the Treaty establishing a Constitution for Europe in the languages mentioned in Article IV-448(2) contributes to fulfilling the objective of respecting the Union’s rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article I-3(3) of that Treaty. In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages. The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article IV-448(2) communicate to the Council, within six months from the date of the signature of that Treaty, the language or languages into which translations of that Treaty will be made.49

When all was said and done, there was little left of the Spanish proposal in the final text of the Treaty establishing a Constitution for Europe and the Treaty falls far short of the Catalan demand. None of the official languages in part of the territory of the Member States has acquired the status of language of the Treaty – a status which, as already mentioned, Spain did not in fact request. Nor have the citizens of the Union acquired the right to use those languages before the institutions, the European Ombudsman and the advisory bodies. Finally, neither does the Treaty facilitate the incorporation of those languages in Lingua and Comenius. What contribution, then, if any, is made by Article IV-448(2) of the Treaty establishing a Constitution for Europe? The truth is that the Treaty does not contribute anything substantial to the official languages in part of the territory of the Member States. The possible translations of the Treaty to these languages would lack official value, as well as practical effects, except for a more ample distribution of the text of the Treaty. Thus, recognition of Article IV-448(2) is essentially symbolic. Probably the only important element to be drawn from its contents is the fact that the Treaty opens up a distinction between the languages which, in accordance with their constitutional order, enjoy official status in all or part of the territory of the Member States and the other regional or minority languages. This distinction could make it easier for the European Union to establish specific recognition in favour of those languages in the future. This seems to be what is referred to in the last part of the first paragraph of the Declaration on Article IV-448(2): “[…] the Conference confirms the attachment of the Union to the cultural diversity of Europe and the



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special attention it will continue to pay to these [the languages mentioned in Article IV-448(2)] and other languages” (emphasis added). Remember that the reference to “these languages” was incorporated consciously, and later on, as a substitute for the expression “linguistic diversity”, which does not distinguish between the languages.50 As already noted, not all official languages in part of the territory of the Member States can benefit from Article IV-448(2). This article refers only to those that enjoy this status in accordance with the “constitutional order” of the States. This requirement originates from the Spanish proposal which, by means of this formula, achieved inclusion of Catalan, Galician and Basque, at the same time radically restricting the languages that could have recourse to the provisions in the precept. We should remember that it was Spain’s intention to ensure recognition of the right of the citizens of the Union to address the institutions and advisory bodies in Catalan, Galician and Basque, and the restriction, on account of the clause “in accordance with their constitutional order”, made it more difficult for Member States to oppose by arguing against the high number of languages concerned and the consequent technical and budgetary difficulties. Given the origin of Article IV-448(2), it seems that it must be interpreted as limited to situations in which two conditions are met: 1) the languages concerned enjoy full official status; and 2) this status is recognised and guaranteed fully in the respective Constitution or rule with constitutional character. This strict interpretation accords best with the origin of Article IV-448(2) and, in my view, best expresses the voluntas of the High Contracting Parties.51 In an earlier article I argued that the only other languages that, in accordance with the constitutional order, enjoy official status in part of the territory of the Member States would be Catalan, Galician, Basque and perhaps Welsh (MilianMassana 2006: 46–47).52 However, I neglected to point out that there is another language to be added: Croatian, in accordance with the Austrian constitutional order (Constitutional Act 1964/59), enjoys official status in part of the territory of Austria [Article 7(3) of the Austrian State Treaty] (Arzoz 2003: 117).53 I do not believe, however, that the languages of the national minorities or ethnic groups of Slovakia and of the Czech Republic could consider themselves covered by Article IV-448(2), given that the constitutional provisions of those two countries do not guarantee full official status, because it is left up to the law to define the conditions. In effect, “the right to use a minority language in official communications” is guaranteed “under provisions fixed by law” [Article 34(2) of the Constitution of the Slovak Republic of 3 September 1992. Emphasis added] and “the right to use their own language when dealing with officials” is established “under the conditions set down by law” [Article 25(2) of the Charter of Fundamental Rights and Basic Freedoms. Emphasis added].54 Therefore, it is the law and not the

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Constitution that defines the official status of the languages of the national minorities or ethnic groups. In short, the constitutional order does not guarantee full official status. For the same reason I do not include the Sami language among the languages covered by Article IV-448(2). The Finnish Constitution leaves regulation of the use of the Sami language before the authorities up to the law. Section 17(3) provides, in effect, that “Provisions on the right of the Sami to use the Sami language before the authorities are laid down by an Act” (emphasis added).55 Consequently, the language’s status is not constitutionally guaranteed. Bearing in mind the reduced number of languages that might apply for Article IV-448(2), and given their demography and/or their vitality, it seems justified to grant them some substantive recognition in the Treaty establishing a Constitution for Europe. If we re-read Article IV-448(2) we will see that, in reality, the languages concerned are any other languages which, in accordance with the constitutional order, enjoy official status “in all or part” of the territory of the Member States. I have just made reference to the other languages that enjoy official status in part of the territory. It remains to be seen what exactly constitutes the other languages that enjoy official status in all the territory. Given that, in principle, the official languages in all the territory of the Member States are recognised as the Constitution’s languages [Article IV-448(1)], it seems that the reference in Article IV-448(2) to the other languages which enjoy official status in all the territory of the Member States lacks meaning. However, there is a language that, in spite of enjoying official status in all the territory, does not enjoy recognition as a Constitution language. Lëtzeburgesch, the national language of the Luxembourgeois and official language in all Luxembourg, is not recognised as a language of the Treaty and, consequently, neither is it considered a language of the Constitution. Recognition of Lëtzeburgesch takes place only in the legal order (Law of 24 February 1984 on the language regime) and not in the constitutional order, as stated apparently in the Constitution itself on delegating to the law the decision to determine the languages to be used in administrative and judicial matters: “The law shall regulate the use of languages in administrative and judicial matters” says Article 29 of the Constitution of the Grand Duchy of Luxembourg of 17 October 1868 (emphasis added).56 Although the Constitution does not specifically say so, Lëtzeburgesch is regarded as implicit in the term “languages” in Article 29, this being deduced from the context in which, in 1948, the constitutional provision was subjected to reform. Article IV-448(2) establishes languages “in accordance with their constitutional order” (emphasis added). Thus, Lëtzeburgesch can benefit from the stipulations of Article IV-448(2). If this were not the case, we would be faced with the absurdity of there being no



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language, at the present time, official in all the territory of a Member State, that could have recourse to Article IV-448(2). Until now, Spain has been the only Member State having recourse to Article IV-448(2). On 4 November 2004 – just a week after the signing of the Treaty establishing a Constitution for Europe – certified copies of translations of the Treaty into Catalan, Galician and Basque were deposited in the archives of the Council. It is no surprise that Article IV-448(2) was invoked, in spite of the fact that the Treaty establishing a Constitution for Europe had not yet entered into force: the Declaration on Article IV-448(2) recommended that those Member States wishing to avail themselves of the opportunity recognised in the Article communicate to the Council “within six months from the date of the signature of that Treaty” the language or languages into which translations of that Treaty will be made. Thus a Treaty can produce effects in spite of not having yet entered into force. Spain did not limit itself to communicating its intentions to the Council: it appeared with a certified copy of translations into the three languages, to be deposited in the archives of the Council. Spain made immediate use of Article IV-448(2), but the content of this article and that of the Declaration on Article IV-448(2) hardly corresponded to the proposal that Spain had presented at the Intergovernmental Conference. For this reason, encouraged principally by the demands of Catalonia and the Basque country, who had requested the status of official language of the institutions for Catalan and Basque, Spain decided, once the Treaty establishing a Constitution for Europe was signed, to request modification of Council Regulation No 1. This request resulted in the Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other institutions and bodies of the European Union.

5.2 The Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union On 13 December 2004, Spain presented to the Council a Memorandum with a proposal for the modification of Council Regulation No 1.57 This modification consists in specifically conferring the status of official language and working language of the institutions of the Union to Catalan (the language that is given this name in Catalonia and the Balearic islands, and called “Valencian” in the Valencian Community), plus Galician and Basque, albeit with some conditions and very restrictive effects, defined in an annex to the modified Council Regulation No 1.58 The restrictions contained in the annex were as follows.

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First, Union institutions could, if they so wished, request the Spanish authorities for a translation into Castilian (Spanish) of texts presented in any of the three languages. If the institutions had a fixed period of time in which to reply, that period commenced from the date on which the Union institution in question received the translation in Castilian. The period ceased either on the date on which the Union institution sent its reply to the sender in the language used by him, or on the date that the institution sent the reply in Castilian to the Spanish authorities. In the second case, it was the responsibility of these authorities to subsequently forward the reply in Castilian to the original sender, together with a translation into the language used by him. Identical rules governed the written communications submitted in Catalan, Galician and Basque before the Economic and Social Committee, the Committee of the Regions and the Ombudsman. Where the Union institutions or bodies had a fixed period of time in which to reply, the Spanish proposal, as already seen, determined the dates in which that period commenced and ceased. In this way, a certain amount of legal certainty was given to the institution or body concerned. However, the Spanish proposal was not satisfactory from the point of view of the sender: where the person who wrote the communication had a fixed period of time in which to act on the institution or body’s reply, when did that period begin, if the institution or body in question opted to send the Spanish authorities the reply in Castilian, in order that they forward it to the sender with a translation into the language used by him or her? The proposal did not address this issue, and consequently, it seems that that period started when the Spanish authorities received the reply in Castilian, which was in fact detrimental to the sender. In effect, by the time the sender received the reply with the translation in the language used, a part or all of the fixed period of time in which to act on the institution or body’s reply could have elapsed. The situation of the sender depended on the speed with which the Spanish authorities sent him the reply from the institution or body. Some are of the view that it is difficult for Spain to request recognition of Catalan, Galician and Basque as communication languages with the institutions, the consultative bodies referred to above and the Ombudsman, because this recognition would go against the third paragraph of Article 21 of the EC Treaty (Mir 2006: 60). According to this view, precisely to respect this paragraph, Spain would have opted for the formula that left the direct admission of the texts in Catalan, Galician and Basque, and the direct reply in these languages, to the discretion of the institutions, the bodies concerned and the Ombudsman. It is true the third paragraph of Article 21 of the EC Treaty recognises as languages of communication only those languages of the Treaties, but it is not evident that it establishes a numerus clausus. The paragraph could also be interpreted in the sense that it does not prevent the Council, through Articles 290 of the EC Treaty and 190 of the



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Euratom Treaty, from recognising other languages as languages of direct communication. In this case such recognition would not acquire Treaty status. Second, in relation to the regulations and other documents of general application and their being made public, the annex ordered that the legal texts adopted pursuant to the provisions of Article 251 of the EC Treaty (the legal texts adopted under the co-decision procedure) be published in Catalan, Galician and Basque in the Official Journal of European Union. In the case of discrepancies between these versions and the text published in any one of the other official languages and working languages, it was established that the latter would prevail. Third, Catalan, Galician and Basque would be permitted in the speeches in plenary sessions of the European Parliament and the Committee of the Regions, as well as, if applicable, in ministerial meetings of the Council, following a request for passive interpretation made within seven working days’ notice. Fourth, any administrative costs arising from the use of the three languages in European Community institutions and bodies would be met by Spain. Likewise, it was foreseen that the Spanish authorities and the Secretaries-General of the institutions and consultative bodies, as well as the administrative head of the office of the Ombudsman, would conclude a general administrative agreement or separate administrative agreements on budgetary and practical matters. As well as considering the modification of Council Regulation No 1, the Spanish proposal contained in the Memorandum requested the incorporation of Catalan, Galician and Basque in Lingua (part of the Socrates programme) on the same footing as the other languages already incorporated. In summary, the Spanish proposal aimed for recognition of Catalan, Galician and Basque as official languages and working languages, but subject to restrictions that virtually deprived them of that character. Just three weeks before the Spanish proposal, Ireland had drawn up a request to the Council that also proposed to modify Council Regulation No 1, in order to grant Irish the status of official language and working language.59 The Irish request submitted the recognition of Irish to the same derogation that the Council Regulation (EC) No 930/2004 had submitted the recognition of Maltese (see Note 10, above). However, while in the case of Maltese, the derogation is expected for a period of three or four years, for Irish it is subject to a period of five years, leaving the door open for a possible extension. In whichever case, the temporary derogation, unlike the Spanish proposal, would not deprive Irish of the status of official language and working language. As already explained, the Irish proposal has prospered in such a way that Irish, in virtue of the Council Regulation (EC) No 920/2005 of 13 June 2005, has been recognised as an official language and working language of the institutions

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of the Union as of 1 January 2007. This Council Regulation embraces the Irish proposal, the only notable difference being that it explicitly allows the Council, at five-yearly intervals, to extend the aforementioned derogation. The Spanish request, on the other hand, has not been so lucky: though it is more restrictive than the Irish proposal, it has been drastically diluted by the Council, giving rise to the Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union. Bearing in mind that the Council Regulation relative to Irish and the Council Conclusion are of the same date, Spain’s generosity is surprising, as it could have vetoed the Regulation on Irish in the hope of obtaining more respect for its proposal for modification of Council Regulation No 1 (which also required Council unanimity). The Presidency of the Council, then in the hands of Luxembourg, argued for refusal of the Spanish request: From a legal point of view […], in the exercise of the remit conferred on it by Article 290, the Council may choose all or some of the languages mentioned in Article 314, but may not depart from the list and choose languages which are not mentioned in it. To do so, an amendment to the Treaty would be necessary.60

From there the Council sought a different form of compromise, not in accordance with Council Regulation No 1, as was the case when adopting the Council Conclusion. The argument of the Presidency does not seem especially sound and convincing. Article 290 of the EC Treaty is limited to referring decisions on the rules governing the languages of the institutions to the Council, acting unanimously. The Article neither restricts the languages to be used by the institutions, nor does it make any reference to Article 314, nor does it pre-define the status that should be granted to languages, which, in my view, could be that of official language and working language, but could also have some other status. All in all, I believe that the modification proposed by Spain was possible. I have stated that the Council Conclusion drastically weakens the Spanish proposal. The former is different from the latter in three important areas. First, contrary to Council regulations, the Council Conclusion does not form part of any of the four categories of Community legislation contained in Article 249 of the EC Treaty.61 Nevertheless the Council Conclusion would not constitute a mere declaration of intentions, but would contain rules for the Council, the Member States and possibly for another Union institution or body. However, the Council Conclusion limits itself to establishing a framework whose effectiveness must materialize on the basis of administrative arrangements. Consequently, the Council Conclusion holds a normative value, but lacks substantive effects. In short, a bilateralism



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appears through the administrative arrangements, which, logically, is missing in the Council regulations and other common sources of European Community law. A second difference relates to the fact that the Council Conclusion does not specifically mention the Catalan, Galician and Basque languages, while it is true that these three languages are included in the languages that the Council Conclusion embraces, as we will see further on. A third important difference (to which I will also return) is the fact that the official use foreseen in the Council Conclusion is even more restrictive than the one that the Spanish Government had already proposed in its Memorandum. Let us now briefly examine the contents of the Council Conclusion of 13 June 2005. Paragraph 1 of the Council Conclusion defines the languages concerned as follows: These conclusions relate to languages other than the languages referred to in Council Regulation No 1/1958 whose status is recognised by the Constitution of a Member State on all or part of its territory or the use of which as a national language is authorized by law.62

From the very beginning there is a logical exclusion: languages that already enjoy the status of official language and working language. The other languages, those that can benefit from the conclusions, are, on the one hand, those that enjoy status through constitutional recognition (without necessarily being recognised as official languages) on all or part of the territory of the Member States, and, on the other hand, those that enjoy the status of national language (being equivalent here to that of official language) by virtue of simple legal rule (without it being necessary that it be foreseen by the constitution). Paragraph 1, does not make clear if the Council Conclusion requires that the status of “national language” be valid on all the territory of the Member States or not. As is readily observed, the wording used by the Council Conclusion is of much wider scope than that contained in Article IV-448(2) of the Treaty establishing a Constitution for Europe, embracing not only the languages covered by this article (the languages which, in accordance with the constitutional order, enjoy official status in all or part of the territory of the Member States, among which are Catalan, Galician and Basque), but also many other languages. Just to give some examples we are already aware of, the first group of languages would include, among others, the languages of the national minorities or ethnic groups of Slovakia and of the Czech Republic. Regarding the official uses that will be authorized, the Council Conclusion, as already mentioned, refers (Paragraph 4) to those stipulated by subsequent administrative arrangements concluded between the Council and the requesting Member State, and possibly by another Union institution or body. Of

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course, these arrangements cannot contain just anything, but have to be concluded in accordance with the Treaty and with the provisions adopted for its implementation, and must also comply with the conditions that the Council Conclusion itself establishes in paragraph 5. These conditions limit the possibility of using the languages concerned to three areas: a) the making public of acts adopted in codecision by the European Parliament and the Council, b) speeches in meetings of the Council and possibly other Union institutions or bodies, and c) written communications to Union institutions and bodies. If we compare the recognition accepted for each one of these three areas with the restrictions that Spain imposed on the use of Catalan, Galician and Basque in its proposal, we will see that the limitations foreseen in the Council Conclusion are even greater. The making public of acts adopted in co-decision is done via the Internet site of the Council, and a translation, being the responsibility of the interested Member State, has no legal value. The Council adds that translation to its archives and provides a copy of it on request. With respect to speeches in meetings (passive interpreting), the government of the interested Member State can request the institution or body for permission to use the language. In the case of the Council, the Council Conclusion adds that “[the] request will in principle be granted, provided it is made reasonably in advance of the meeting and the necessary staff and equipment are available.” In the case of other institutions or bodies (the European Parliament or Committee of the Regions), the Council Conclusion does not determine the criteria for the admission of the request. It must be established by a corresponding administrative agreement. Finally, with respect to written communications to Union institutions and bodies, the Council Conclusion does not allow direct delivery, but insists on an indirect delivery via a body designated by the Member State. This body must translate the text of the communication into the language (or into one of the languages) of the Member State, which must at the same time be an official language of the Union, and must then send the original to the institution or body in question, along with a translation of the communication. The same indirect delivery procedure must apply mutatis mutandis to the reply from the institution or body in question. That is, the institution or body has to send the reply in the official language of the State to the body designated by it and then this body subsequently has to send the original sender the reply together with a translation to the language used by him or her. In the case of Union institutions or bodies having a fixed period of time in which to reply, the Council Conclusion determines when that period commences and when it ceases. According to the Council Conclusion the period commences from the date on which the institution or body receives the translation sent by the body designated by the



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Member State, and it ceases on the date on which the institution or body sends its reply to the competent body of the Member State. As with the Spanish proposal, the Council Conclusion puts the petitioning citizen in a vulnerable position with respect to the fixed period, when it exists: receipt of the written communication within the fixed period by the institutions or bodies depends on the speed with which the translation is carried out and sent to the Union institution or body in question. If the citizen who wrote the communication has a fixed period of time in which to act on the reply, arrival of the citizen’s new text within the designated period will depend as much on the speed with which the body responsible for translation has acted as on the speed with which that body translates and sends the new text. For all these reasons, it is doubtful whether citizens will be willing to send written communications in one of the languages recognised by the Council Conclusion when true rights or important legal interests could be lost. The risk of translation errors will further reduce the use of these languages. Recognition will not be of much use as long as written communications to Union institutions or bodies cannot be sent directly in the languages in question, response times are not guaranteed, and the Union declines responsibility for possible translation errors.63 The procedure will probably only be used for informal written communications or written communications where the sender is not in need of a prompt reply. Paragraph 5, stipulates that all costs associated with implementation of the administrative arrangements by Union institutions and bodies will be borne by the requesting Member State. The Council Conclusion ends by inviting the other institutions to conclude administrative arrangements on the same basis. In reality, most of the provisions are directed not only to the Council but also to the other institutions and bodies. For these other institutions and bodies, paragraph 4 stipulates that the official use of the languages will be authorized “on the basis of a similar administrative arrangement” (emphasis added). An interesting question, which cannot be dealt with here, is up to what point does the Council Conclusion bind the other institutions and bodies? Given the limitations and inconveniences mentioned above, it appears that the Council Conclusion is of no great use – unless in the future, on concluding the administrative arrangements, the institutions or bodies move away from the current provisions. Probably the most important opportunity is the use of the languages concerned in speeches in meetings of the Council and possibly in the full session of the European Parliament.64 Given that communications written in one of the additional languages must be translated into the language of the concerned Member State, the Council Conclusion is incorrect in referring to official use of the additional languages. An official language is used to communicate directly with the public powers (Pedrazzini 1962; de Mestral & Fraiberg 1966–67;

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Bloomfield 1972; Milian-Massana 1984; Braën 1987).65 If translation were made for the public powers, it could not prevail in the case of discrepancies and it could not determine the fixed period. Up to now, Spain is the only Member State to have signed administrative arrangements with the Council, the Commission, the Committee of the Regions and the Economic and Social Committee. For the moment, only the first two agreements have been published in the Official Journal.66 Concerning written communications, the administrative arrangements, taking note of the weak position of the sender regarding time limits, complement the general rules of the Council Conclusion by requiring that the institution or body send its reply in Castilian directly to the sender at the same time as to the body designated to effect the translation. The time limit for acting on the reply will start from the date on which the sender receives the Castilian reply. In this way, the sender does not waste the time that passes until the designated body sends that person the translation. However, the rule introduced by the administrative arrangements, while commendable from the point of view of legal certainty, makes the version in the language of the sender little more than an ornament. If we add to this the specification made by the administrative arrangements that in no case is the European institution or body responsible for the translations (which is logical, because translations are outside their duties), it is not likely that citizens would use any of the three languages concerned (Catalan, Galician and Basque) in their written communications, except, perhaps, as already pointed out, in informal communications. For this reason, the administrative agreement between the Commission and Spain, independently from the Council Conclusion, has foreseen the possibility of the Commission’s departments being able to do the translations themselves and that they might decide to reply in the language of the original document by sending their reply directly to the person concerned. However, the discretional terms – which are complete and absolute – with respect to the use of these possibilities (“Unless the Commission’s departments are able and willing to do the translation themselves” or “If the competent departments of the Commission decide to reply in the language of the original document”) do not encourage the use of the languages concerned and do suggest that such cases would be unusual options. Such an unusual option is also foreseen in the administrative arrangement signed by Spain with the Economic and Social Committee. While the Council Conclusion is restricted to citizens of each Member State, in two of the four administrative arrangements signed by Spain that recognition is not only made in favour of Spanish citizens, but also in favour of any other natural or legal person residing or established in Spain. Final provisions establish when the above mentioned arrangements begin to apply. The arrangements will apply once the Spanish Government has notified the



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competent bodies making the translations and/or, depending on the cases, once the Union institution or body concerned has informed the Spanish Government that the measures necessary for the implementation of the respective arrangement have been put in place. Meanwhile, the Bureau of the European Parliament, after an initial refusal,67 has decided to endorse a proposal whereby Parliament undertakes to handle directly, to the extent possible with in-house resources, citizens’ correspondence in the languages, other than Castilian (Spanish), which enjoy constitutional status in Spain. Where it is not possible to handle citizens’ correspondence in-house, the decision foresees recourse to external translation agencies, which Parliament shall identify, with the costs arising to be met by the Spanish government.68 The European Parliament has moved away from administrative arrangements and will see if the decision adopted by the Bureau of the European Parliament requires a formal administrative arrangement. If the Parliament takes responsibility for all aspects of translation, the decision could be useful. The Bureau’s decision finally gives substance, in part, to the Resolution on the right to use one’s own language, adopted by the European Parliament on 6 May 1994, which stated that the European Parliament: Considers, therefore, that its Rules of Procedure should recognize the right of citizens to send their petitions to the Committee on Petitions and the Ombudsman in their own language provided that it is an official language in their territory.69

It is easy to appreciate that the Resolution undoubtedly included the official languages in part of the territory of the Member States. The phrase “an official language in their territory” clearly refers to the territory of the citizens.

6.

Conclusions

In the last few years the basis of the rules governing languages has not been modified, but some new linguistic provisions have been introduced that have slightly modified the existing panorama. The conferring of the status of official language and working language to Maltese and Irish, while this recognition was not necessary to guarantee legal certainty, demonstrates that within the Union there continues to be a willingness to privilege the languages that enjoy official status in all of the territory of the Member States. The recognition of the Irish language means, once again, that the official languages and working languages coincide exactly with the languages of the Treaties, as was the case before the first enlargement of the Communities. With respect to the languages referred to in Council Regulation No 1, the Union has not dared, for the moment, to distinguish

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between official languages and working languages – a step necessary to bring the legislation closer to reality, and to prevent, if it so wishes, English from becoming de facto the only working language. The criterion adopted to determine official languages and working languages, not having been expanded with the addition of other criteria, has given rise to a linguistic regime that is disproportionate and, at times, iniquitous (Milian-Massana 2002, 2003, 2004). This is the case, in particular, with those languages which, in accordance with the constitutional order, enjoy full official status in part of the territory of the Member States and that also enjoy ample usage and a considerable number of speakers. For this reason, in establishing the rules governing languages, other criteria should be borne in mind, in addition to the criterion of official status in all the territory, and steps should be taken to confer the status of official language or of language of the Treaties, or some similar recognition (or indeed an ad hoc status on a case by case basis) on those languages. The preamble to Council Regulation No 1 also allows a wider interpretation than the one that has been applied up to now. Finally, it is paradoxical, for example, that recognition has been extended to Irish, a language that has not really been taken advantage of at the Court of Justice, while linguistic status for Catalan has been refused, even though its speakers have repeatedly shown their willingness to use it within the European Union, and have employed it extensively on the sporadic occasions when they have been allowed to.70 The Union has attempted to introduce a corrective through the recognition that the Treaty establishing a Constitution for Europe favours the languages other than the languages referred to in Council Regulation No 1, which, in accordance with the corresponding constitutional order, enjoy official status in all or part of the territory of the Member States. The same is true of Council Conclusion of 13 June 2005, whose provisions can benefit an even larger number of languages: all of those whose status is recognised by the Constitution of a Member State on all or part of its territory or the use of which as a national language is authorized by law. However, all these provisions, as I have tried to show, have little significance, and in some cases, are of doubtful utility for the citizens, at least for speakers of more dynamic “regional” languages. In reality, these provisions do not create a new Union status that would be added to the status of official language and working language, and to the status of language of the Treaties. The recognition lacks sufficient depth to qualify as a new status. Article IV-448(2) of the Treaty establishing a Constitution for Europe has a largely symbolic significance. With respect to the conclusions of the Council, all translations must be carried out by the Member State concerned; in the case of acts adopted in co-decision, the translations have no legal value; in no case is the Union’s responsibility engaged by any errors of translation; all costs



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are borne by the requesting Member State. The only direct involvement of the languages in question occurs in the provision regarding speeches and in the occasional instance where communications written in the languages benefiting from the Council Conclusion are accepted directly. The merit of these features stems from the fact that for the first time a framework of recognition has been drawn up in favour of some of the languages other than the official languages in all the territory of the Member States; for the first time an objective distinction has been introduced among the regional and minority languages; and finally, the provisions in place, albeit very exiguous, could constitute an embryo for future institutional recognition. A first step has been taken to enable some regional or minority languages to cease to be second class languages. Let us not forget, however, that “[t]he fight for survival of [regional or] minority languages in the national context is made more difficult by the added European dimension” (de Witte 1992: 292). Nor should we forget that linguistic protection is usually considered – with less emphasis when it concerns the official languages of the Union – as a market barrier (de Witte 1992, 1993; Palermo 2001), which makes the adoption of requirements to promote the “regional” languages that enjoy vitality, difficult. There will be difficulties as long as the protection of a language is not considered as a “mandatory requirement” or “imperative requirement” justifying restrictions on Community freedoms. These difficulties, by contrast, are lessened in the case of the languages of the States, where language requirements may be based on such concerns as consumer protection, the reliability of medical professionals’ communication with their patients, or the protection of public health (Milian-Massana 2006: 51–56). If the speakers of the regional language also understand the language of the State – which is usually the case – it will be more difficult to justify regional language requirements on the same basis. It is not surprising, then, that an author, in face of this reality, and in face of the action of the Union with regard to languages, wonders if the language law of the European Union protects or erodes linguistic diversity (de Witte 2004b). We will not respond to this question here, but I would like to point out that while the new features alluded to in this article could mean a satisfactory recognition and a significant move forward for some regional or minority languages, the same cannot be said with respect to the official languages in part of the territory of the Member States that already possess a notable vitality and are of demographic importance – languages whose preservation should be assured through treatment similar to that of the majority languages. Indeed, in reality such languages can be considered majority or quasi-majority languages, for reasons of vitality as well as demography. These languages, actually few in number, are probably the most negatively affected by European integration. The European Union should grant them differential recognition from the other “regional” languages and should

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confer on them an adequate and sufficient status close to or similar to that of the official languages or of the languages of the Treaties. This recognition must also be reflected in Community secondary legislation, where normally only the official languages of the States are taken into consideration, instead of the official languages in the States.71 To a certain extent, the provisions of Article IV-448(2) of the Treaty establishing a Constitution for Europe and of the Council Conclusion are dependent on the Spanish struggle to obtain a status for Catalan, Galician and Basque. So far, the results obtained fall far short of the aspirations of the speakers of Catalan, Galician or Basque. For this reason, the new text of the Statute of Autonomy of Catalonia, of 19 July 2006,72 incorporates and reiterates the old Catalan demands that the Catalan language enjoy the status of official language of the Union. Article 6(3) of the Statute specifically stipulates that: “The Generalitat [the Catalan autonomous institutions] and the State shall undertake the necessary measures to obtain official status for Catalan within the European Union […]” For the moment, the recognition by the European Union of the languages that are official in part of the territory of the Member States and, above all, those languages which enjoy that status in accordance with the corresponding constitutional order, and that likewise enjoy notable vitality and demographic importance, continues to be a pending subject on the European agenda.

Addendum After two years of uncertainty over the Union’s treaty reform process, the European Council decided at its meeting of 21–23 June 2007 to abandon the ratification process for the Treaty establishing a Constitution for Europe. Following this mandate, the Presidency of the Council convened a conference of representatives of the governments of the Member States (IGC) for the purpose of determining by common accord the amendments to be made to the Treaties on which the European Union is founded. The first meeting of the conference was held in Brussels on 23 July 2007. The “draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community” (CIG 1/07) submitted to the IGC includes the articles and the declaration on languages that were contained in the Treaty establishing a Constitution for Europe. Consequently, these articles and the declaration will very probably be incorporated in the future Treaty.



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Notes 1. OJ C 325, 24.12.2002, 48. See also Article 2(45) and Article 3(24) of the Treaty of Nice. 2. Council Regulation no 1 of 15 April 1958 determining the languages to be used by the European Economic Community [OJ 17, at 385/58] and Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Atomic Energy Community [OJ 17, at 401/58]. Currently the content of both Council Regulations is identical. The two Council Regulations are hereinafter referred to as “Council Regulation No 1”, in the singular. 3. OJ L 363, 20.12.2006, 80. 4. Neither has Turkish reached the status of official language and working language, despite being official language in Cyprus. According to Article 3(1) of the Constitution, the official languages of the Republic are Greek and Turkish. In the case of Cyprus, the lack of recognition of Turkish is due to the fact that citizens whose mother tongue is Turkish are in the area of the island occupied by Turkey. The Constitution of Cyprus was signed on 16 August 1960. 5. According to Article 8 of the Constitution, “[t]he Irish language as the national language is the first official language”, and “[t]he English language is recognised as a second official language.” The Constitution of Ireland is dated 29 December 1937. 6. Although by law the language of Luxembourg qualifies as a national language (“the national language of the Luxembourgeois”), in reality the legal text also confers on it the status of official language. 7. According to Article 5 of the Constitution of Malta, the Maltese language is the national language of Malta and the official languages of Malta are Maltese and English. The Constitution of Malta is dated 21 September 1964. 8. Council Regulation (EC) No 920/2005 of 13 June 2005. 9. Member States and persons subject to the jurisdiction of a Member State may select the official language in which the document to be sent to the institutions will be drafted. The reply must be drafted in the same language. Documents which an institution of the Union sends to a Member State or to a person subject to the jurisdiction of a Member State must be drafted in the language of that State. 10. See Council Regulation (EC) No 930/2004 of 1 May 2004 on temporary derogation measures relating to the drafting in Maltese of the acts of the institutions of the European Union. For a certain period of time, which could be three or four years, only the drafting and the publication in Maltese of the regulations adopted jointly by the European Parliament and the Council will be guaranteed. The date of Council Regulation (EC) No 930/2004 is the same as that on which the 2004 Treaty of Accession entered into force. Recently, Council Regulation (EC) No 1738/2006 of 23 November 2006 has established that “[a]ll acts which have not been published in Maltese by 30 April 2007 will also be published in that language by 31 December 2008 at the latest.” 11. We note that the English version of Article 6 differs, for example, from the French and the Spanish version. On the other hand, although there are 23 working languages, only English and, to a lesser extent, French are used, for the most part (Nic Shuibhne 2004: 28). For

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data relating to the use of working languages see Truchot 2001: 235–238; de Elera-San Miguel 2004: 110–115. 12. In a strict sense, the institutions are the following: the Council, the Commission, the European Parliament, the Court of Auditors and the Court of Justice. For rules governing the languages of the bodies and agencies, see Vos 2000: 1128–1130; Milian-Massana 2002, 2003, 2004. 13. See Case T-333/99, X v ECB [2001] ECR II-3021, para. 186; and Case C-361/01 P, Kik v OHMI [2003] ECR I-8283. On Kik see, for example, Fabiano 2004. 14. Article 7 of Council Regulation No 1. 15. For the Court of First Instance, Articles 35 to 37 of the Rules of Procedure of the Court of First Instance of the European Communities. The provisions concerning the Court of First Instance’s language arrangements apply to the European Union Civil Service Tribunal – a judicial panel attached to the Court of First Instance. [Article 7(2) Annex to Statute of the Court of Justice]. 16. Until the Treaty of Nice, the only substantive provision that the Treaties contained concerning languages to be used in the institutions was the one in paragraph three of Article 21 of the EC Treaty, to which I refer later (see Section 2.2 below). 17. Case 66/74, Ferrauto v Bau-Berufsgenossenschaft [1975] ECR 157, para. 6. 18. As mentioned later (see N 31 below), the Treaty establishing a Constitution for Europe is not yet in force. The unsuccessful referendum on its ratification in France and Holland implies at least the introduction of amendments to the signed text before its entry into force (if it finally enters into force). If the present treaty is kept with the corresponding amendments, it is not foreseeable that they will affect the rules governing languages. It should be borne in mind that the non-acceptance by France and Holland is not due to a linguistic issue. 19. See Art 2, para. 11 of the Treaty of Amsterdam. The Treaty of Amsterdam entered into force on 1 May 1999. 20. Irish had also been recognised as a language of a case at the Court of Justice and at the Court of First Instance. Therefore, although the decisions of the Court of Justice and of the Court of First Instance were not translated into Irish, there could be some decisions drafted in Irish: decisions of cases in which the language of a case was Irish. However, I do not know of any case in which it had been used. In relation to Irish it must be added that the text of the Rules of procedure of the Court of Justice and the text of the Rules of procedure of the Court of First Instance were authentic in the official languages plus Irish. 21. OJ. English special edition. Series-172(II) at 351. 22. To be more precise, the number has been taken from the regional and minority language groups of the Member States enumerated by Euromosaic. The Euromosaic study is available online at http://europa.eu.int/comm/education/policies/lang/languages/langmin/euromosaic/ index_en.html. For Bulgaria and Romania, see http://www.tlfq.ulaval.ca/axl/europe/europeacc. htm.



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23. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, 24.07.2003, COM(2003) 449 final, at Section I, point I.6, and Section I, point III.1. 24. In the Annex of the Decision No 253/2000/EC of the European Parliament and of the Council of 24 January 2000, establishing the second phase of the Community action programme in the field of education (the Socrates programme) (OJ L 28, 3.2.2000, 1), the languages comprising the “Action” Lingua are defined as follows: “In this context, language teaching covers the teaching and learning as foreign languages of all the official languages of the Community, together with Irish (one of the languages in which the Treaties establishing the European Communities are drawn up) and Lëtzeburgesch (a language spoken throughout the territory of Luxembourg)” (Action 4 “Lingua”, point 2, at 9). See also Action 1 “Comenius”, point 1.1(2) (b). The national languages of the European economic area (EEA) countries and the national languages of the newly participating countries are also eligible in the Actions of the Socrates Programme. See the Answer given by Mrs Reding on behalf of the Commission published in OJ C 46 E, 13.2.2001, 211–212. In the Answer, it is specifically stated that “Regional and minority languages are not eligible to be target languages under the Socrates programme” (at 212). See also Article 12 of the Decision No 253/2000/EC of the European Parliament and of the Council, as modified by Council Regulation (EC) No 885/2004. A new Decision has recently replaced the 2000 Decision: Decision No 1720/2006/EC of the European Parliament and of the Council of 15 November 2006, establishing an action programme in the field of lifelong learning (OJ L 327, 24.11.2006, 45). According to this Decision, the Lifelong Learning Programme covers all the “modern foreign languages”. At last, languages other than the official languages and working languages are not excluded. The issue will still be what relevance is given to those languages when the programme is implemented. On the occasion of the most recent enlargement (2007), a Commissioner of Multilingualism has been appointed. 25. OJ C 364, 18.12.2000, 1. 26. See the chapter by Arzoz in this volume. 27. See also the Regular Reports on Accession 1999 to 2004 from the European Commission. 28. Among the most important achievements of the Council of Europe, the European Charter for Regional or Minority Languages (ETS No 148) and the Framework Convention for the Protection of National Minorities (ETS No 157) should be highlighted. 29. Decision of the Council of the European Union (95/1/EC, Euratom, ECSC), of 1 January 1995, adjusting the instruments concerning the accession of new Member States to the European Union. 30. OJ C 19, 28.1.1991, 43. 31. The final text of the Treaty establishing a Constitution for Europe was signed in Rome on the 29 October 2004. See the text in OJ C 310, 16.12.2004, 1. The Treaty has not entered into force, not having yet been ratified by all the Member States. 32. With respect to the possible legal effects of Articles I-3(3) and II-82 see Milian-Massana 2006: 48–51; Urrutia 2004: 259–271.

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33. Article III-433 states that: “The Council shall adopt unanimously a European regulation laying down the rules governing the languages of the Union’s institutions, without prejudice to the Statute of the Court of Justice of the European Union”. This provision merely adapts Articles 290 of the EC Treaty and 190 of the Euratom Treaty to the new legal instruments provided by the Treaty establishing a Constitution for Europe. Article 190 is specifically repealed by Article 5 of Protocol No 36 amending the Treaty establishing the European Atomic Energy Community (Protocol No 36 is annexed to the Treaty establishing a Constitution for Europe). 34. Motion 12/VII of the Parliament of Catalonia on linguistic “normalisation”, BOPC No 52, 07.05.2004, at 4 and 5. See, also, DSCD – P, No 2, VIII Legislature, 15.04.2004, at 60 and 67. 35. Resolutions of the Parliament of Catalonia No 774/VI (BOPC No 202, 25.06.2001, at 11) and No 196/VII (BOPC No 161, 14.03.2005, at 5). See also Resolution of the Parliament of the Balearic Islands No 359/02, adopted on the 17 April 2002 (BOPIB No 139, 26.04.2002, at 3434). Note that this is not the first time that the status of official language for the Catalan language has been claimed. 36. See, for example, Declaration of the Basque Government Council of 18 May 2004 on the recognition of the Basque language in Europe (http://www1.euskadi.net/acuerdos/datos_ c.apl?cod_acuerdo=1806). 37. Council of the European Union, CAB 67, Document No 15205/04, 24.11.2004. 38. Motion 12/VII. See N 34 above. 39. For some opinions expressed by the Spanish authorities with respect to the recognition in the European Union of Catalan, Galician and Basque, see Pla 2005: 16–20; Urrutia 2004: 250. 40. OJ C 148, 18.6.2005, 1. 41. OJ C 310, 16.12.2004, 191. 42. The Draft Treaty establishing a Constitution for Europe was adopted by consensus by the European Convention on 13 June and 10 July 2003. For the text as submitted to the President of the European Council in Rome on 18 July 2003, see Document CONV 850/03. 43. Article 3(2) of the Constitution of Spain; Article 6(2) of the Organic Law 6/2006, Statute of Autonomy of Catalonia [formerly Article 3(2) of the Organic Law 4/1979]; Article 3 of the Organic Law 2/1983, Statute of Autonomy of the Balearic Islands; Article 6(2) of the Organic Law 1/2006, Statute of Autonomy of the Valencian Community [formerly Article 7(1) of the Organic Law 5/1982]; Article 5(2) of the Organic Law 1/1981, Galician Statute of Autonomy; Article 6(1) of the Organic Law 3/1979, Statute of Autonomy of the Basque Country; Article 9(2) of the Organic Law 13/1982, on Reincorporation and Revision of the Legal System (Régimen Foral) of Navarra. 44. That is why they even had to be placed in another archive. 45. See CIG 76/04, of 13 May 2004, annex 39. 46. See CIG 81/04, of 16 June 2004, annex 52. 47. See CIG 84/04, of 18 June 2004, annex 17; and CIG 85/04, of 18 June 2004, annex 17.



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48. See CIG 87/04 ADD 2 of 6 August 2004, Declaration on Article IV-448(2). 49. OJ C 310, 16.12.2004, 463. 50. Compare CIG 81/04, of 16 June 2004, annex 52, and CIG 84/04, of 18 June 2004, annex 17. 51. However, given the limited effects of that provision, it is likely that the Council will apply a more flexible interpretation, if necessary, on the basis of another criterion. 52. Although I say this with reservations because of my lack of familiarity with the AngloSaxon constitutional system, I have the impression that it is uncertain whether Welsh complies with both conditions, given the particular constitutional regime in the United Kingdom and given the fact that in Great Britain no legal regulation defines the official languages. The same could be said for Gaelic, with the aggravating factor that, in practice, it does not enjoy the kind of recognition now accorded to Welsh. 53. Austrian legislation has not always recognised full official status for Croatian when implementing Article 7(3) of the Austrian State Treaty (Hilpold 1996: 129–132 and 134–135). 54. This Charter is declarated as a part of the constitutional system of the Czech Republic in the Article 112 of the Constitution of the Czech Republic (Constitutional Act No 1/1993). 55. Constitution of Finland of 11 June 1999 (731/1999). 56. The current draft of Article 29 originates from the constitutional revision of 6 May 1948. 57. Council of the European Union, CAB 69, Document No 16220/04, 16 December 2004. 58. The Spanish proposal added a second paragraph to Article 1 of Council Regulation No 1 establishing that “Basque, Galician and the language called Catalan in the Autonomous Community of Catalonia and in that of the Balearic Islands and Valencian in the Valencian Community shall also be official and working languages of Union institutions, in the terms of and for the purposes established in the Annex to this Regulation […].” 59. Council of the European Union, CAB 67, Document No 15205/04, 24.11.2004. The Irish proposal is dated 23 November 2004. 60. Council of the European Union, CAB 19, Document No 9506/2/05 REV 2, 13.06.2005, at 2. 61. Although the Treaties establish four categories of Community legislation – regulations, directives, decisions and recommendations, and opinions (Article 249 of the EC Treaty) – the institutions have developed other methods of making policy, such as resolutions, declarations or conclusions. For the informal instruments and their acceptance by the European Court of Justice, see, for example, Isaac & Blanquet 2001: 158–161; Craig & de Búrca 2003: 116–117, and the bibliography and judgments cited in these two references. 62. Emphasis added. OJ C 148, 18.6.2005, 1. Incidentally, in contrast to the English version and the French, Italian, German and Portuguese versions (being those which I have consulted), the Castilian version (Spanish) of the Council Conclusion joins the two conditions by means of the conjunction “and”, which would mean a restriction of the number of languages concerned. However, given the text of the conditions, this linkage does not seem to make sense. Consequently, in view of the apparent discrepancy, it seems that the versions using the conjunction

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“or” should prevail, and the conjunction “and” of the Castilian (Spanish) version surely constitutes an error. 63. The Council Conclusion does not state who must take responsibility for translation errors. The administrative arrangements do. See text below. 64. The Council Conclusion does not include the Spanish proposal to incorporate Catalan, Galician and Basque into Lingua (the Socrates Programme). This is logical, because its incorporation should be done by modifying Decision No 253/2000/EC of the European Parliament and of the Council of 24 January 2000, establishing the second phase of Socrates, the Community action programme in the field of education. As already mentioned (see N 24 above), the 2000 Decision has recently been replaced by a new Decision, which covers all “modern foreign languages”. 65. For the content and effects of the official language status the following judgment of the Spanish Constitutional Court is of interest: STC 82/1986, 26 June 1986, FJ 2. 66. Administrative Arrangement between the Kingdom of Spain and the Council of the European Union, OJ C 40, 17.2.2006, 2; Administrative Agreement between the European Commission and the Kingdom of Spain, OJ C 73, 25.3.2006, 14. (Since completion of the present essay, an administrative arrangement between the Kingdom of Spain and the European Ombudsman has been signed. The Spanish text is available at http://www.ombudsman.europa.eu/letters/ es/20061130-1.htm.) 67. See Document PE 371.243/BUR, 24.4.2006, at 10. 68. See Document PE 375.126/BUR, 3.7.2006, at 10–11. The Bureau follows the Conference of Presidents’ invitation. See Document PE 371.339/CPG, 18.5.2006, at 24–26. 69. Paragraph 5. OJ C 205, 25.7.1994, 529. 70. A recent example was the online discussion forum “Debate Europe” launched by the European Commission on 27 March 2006. The discussion was actively moderated in the twenty official languages of the time and in Catalan. At the beginning of the month of May, the Catalan version of the Debate Europe website was the fourth most visited, after the English, French and German versions. See the newspaper Avui, 8.5.2006, 32. 71. Among the few legal instruments of the Community secondary legislation which expressly admit languages other than the official languages and working languages, see, for example, Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (Annex III). 72. Organic Law 6/2006, of 19 July 2006, of reform of the Statute of Autonomy of Catalonia (BOE 172, 20.7.2006, at 27269). This Organic Law repeals the Organic Law 4/1979, of 18 December 1979, that contained the previous Statute of Autonomy of Catalonia.



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References Agirreazkuenaga, Iñaki. 2003. Diversidad y convivencia lingüística. Dimensión europea, nacional y claves jurídicas para la normalización del Euskara. Donostia-San Sebastián: Gipuzkoako Foru Aldundia-Diputación Foral de Gipuzkoa. Arzoz Santisteban, Xabier. 2003. “Señalización viaria y lenguas minoritarias: Algunas reflexiones en torno a la Sentencia del Tribunal Constitucional austriaco sobre la señalización bilingüe en Carintia”. Revista de Llengua i Dret 40.109–147. Berteloot, Pascale. 1999. “Le droit à la langue de l’Union européenne”. Langue et Droit. XVe Congrès international de Droit Comparé. Bristol 1998 ed. by Erik Jayme, 345–362. Bruxelles: Bruylant. Bloomfield, Louis M. 1972. “La competence constitutionnelle et juridique pour instituer une langue ou des langues officielles au Québec”. La situation de la langue française au Québec. Rapport de la commission d’enquête sur la situation de la langue française et sur les droits linguistiques au Québec ed. by Commission d’enquête, vol II (Les droits linguistiques), 219– 255. Québec: Gouvernement du Québec. Braën, André. 1987. “Language Rights”. Language Rights in Canada ed. by Michel Bastarache, 1–63. Montreal: Yvon Blais. Coulmas, Florian. 1991. “European Integration and the Idea of the National Language. Ideological roots and economic consequences”. A Language Policy for the European Community. Prospects and Quandaries ed. by Florian Coulmas, 1–43. Berlin & New York: Mouton de Gruyter. Craig, Paul & Gráinne de Búrca. 2003. EU Law. Text, Cases, and Materials. Oxford & New York: Oxford University Press. Creech, Richard L. 2005. Law and Language in the European Union. The Paradox of a Babel “United in Diversity”. Groningen: Europa Law. de Elera-San Miguel Hurtado, Álvaro. 2004. “Unión Europea y Multilingüismo”. Revista española de Derecho Europeo 9.85–135. de Mestral, Armand L.C. & William Fraiberg. 1966–67. “Language Guarantees and the Power to Amend the Canadian Constitution”. McGill Law Journal 12: 4.502–519. de Witte, Bruno. 1992. “Surviving in Babel? Language Rights and European Integration”. The Protection of Minorities and Human Rights ed. by Yoram Dinstein & Mala Tabory, 277–300. Dordrecht, Boston & London: Martinus Nijhoff. de Witte, Bruno. 1993. “The European Community and its Minorities”. Peoples and Minorities in International Law ed. by Catherine Brölmann, René Lefeber & Marjoleine Zieck, 167–185. Dordrecht, Boston & London: Martinus Nijhoff. de Witte, Bruno. 2004a. “The Constitutional Resources for an EU Minority Protection Policy”. Minority Protection and the Enlarged European Union: The Way Forward ed. by Gabriel N. Toggenburg, 107–124. Budapest: Local Government and Public Service Reform Iniciative/Open Society Institute. de Witte, Bruno. 2004b. “Language Law of the European Union: Protecting or Eroding Linguistic Diversity?”. Culture and European Union Law ed. by Rachael Craufurd Smith, 205–241. Oxford & New York: Oxford University Press. Fabeiro Hidalgo, Patricia. 2005. “Un estudio jurídico del régimen lingüístico de las instituciones de la Unión Europea”. Revista de Llengua i Dret 44.49–99.

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Fabiano, Laura. 2004. “‘Ignorantia linguae non excusat’: il regime linguistico delle agenzie comunitarie”. Diritto Pubblico Comparato ed Europeo 1.416–421. Fenet, Alain. 2001. “Diversité linguistique et construction européenne”. Revue trimestrielle de droit européen 37: 2.235–269. Heusse, Marie-Pascale. 1999. “Le multilinguisme ou le défi caché de l’Union européenne”. Revue du Marché Commun et de l’Union européenne 426.202–207. Hilpold, Peter. 1996. “La protecció de les minories lingüístiques a Àustria”. Els drets lingüístics a la nova Europa. Actes del II Simposi Internacional de Llengües Europees i Legislacions ed. by CIEMEN, 128–153. Barcelona: Editorial Mediterrània. Hoffmeister, Frank. 2004. “Monitoring Minority Rights in the Enlarged European Union”. Minority Protection and the Enlarged European Union: The Way Forward ed. by Gabriel N. Toggenburg, 85–106. Budapest: Local Government and Public Service Reform Iniciative/ Open Society Insitute. Isaac, Guy & Marc Blanquet. 2001 (8 edition). Droit communautaire général. Paris: Colin. Kraus, Peter A. 2000. “Political unity and linguistic diversity in Europe”. Archives européennes de sociologie 41: 1.138–163. Labrie, Normand. 1993. La construction linguistique de la Communauté européenne. Paris: Champion. Lopes Sabino, Amadeu. 1999. “Les langues dans l’Union européenne: enjeux, pratiques et perspectives”. Revue trimestrielle de droit européen 35: 2.159–169. Milian-Massana, Antoni. 1984. “La regulación constitucional del multilingüismo”. Revista Española de Derecho Constitucional 10.123–154. Milian-Massana, Antoni. 1995. “Le régime linguistique de l’Union européenne: le régime des institutions et l’incidence du droit communautaire sur la mosaïque linguistique européenne”. Rivista di diritto europeo 35: 3.485–512. Milian-Massana, Antoni. 2000. Público y privado en la normalización lingüística. Cuatro estudios sobre derechos lingüísticos. Barcelona: Atelier. Milian-Massana, Antoni. 2002. “Le principe d’égalité des langues au sein des institutions de l’Union européenne et dans le droit communautaire, mythe ou réalité?”. Revista de Llengua i Dret 38.47–94. Milian-Massana, Antoni. 2003. La igualtat de les llengües a les institucions de la Unió Europea, mite o realitat? Bellaterra: Servei de Publicacions Universitat Autònoma de Barcelona. Milian-Massana, Antoni. 2004. “Le régime juridique du multilinguisme dans l’Union européenne. Le mythe ou la réalité du principe d’égalité des langues”. Revue juridique Thémis 38: 1. 211–260. Milian-Massana, Antoni. 2005a. “Les modalités linguistiques de fonctionnement d’une organisation supranationale: le cas de l’Union européenne”. Appartenances, institutions et citoyenneté ed. by Pierre Noreau & José Woehrling, 241–258. Montreal: Wilson & Lafleur. Milian-Massana, Antoni. 2005b. “Dictamen sobre la reglamentació de l’ús de la llengua catalana a l’etiquetatge i a les instruccions d’ús dels productes comercials”. Revista de Llengua i Dret 43.279–323. Milian-Massana, Antoni. 2006. “L’ émergence du nouveau droit linguistique dans l’Union européenne”. The Supreme Court Law Review 31.29–64. Mir, Narcís. 2006. “Dret institucional i material de la Unió Europea: la seva relació amb la llengua catalana”. Ms., Universitat de Girona.



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Nic Shuibhne, Niamh. 2004 (reprint). EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights. The Hague, London & New York: Kluwer Law International. Ortolani, Andrea. 2002. “Lingue e politica linguistica nell’Unione europea”. Rivista critica del diritto privato 20: 1.127–168. Palermo, Francesco. 2001. “The Use of Minority Languages: Recent Developments in EC law and Judgments of the ECJ”. Maastricht Journal of European and Comparative Law 8: 3.299– 318. Pedrazzini, Mario. 1962. “Les principes du droit des langues en Suisse”. Res Publica 4.238–246. Pentassuglia, Gaetano. 2001. “The EU and the Protection of Minorities: The Case of Eastern Europe”. European Journal of International Law 12: 1.3–38. Pla Boix, Anna Maria. 2005. L’ ús de les llengües autonòmiques cooficials a la Unió Europea. Barcelona: Institut d’Estudis Autonòmics. Thio, Li-ann. 2003. “Developing a ‘peace and security’ approach towards minorities’ problems”. International & Comparative Law Quarterly 52: 1.115–150. Truchot, Claude. 2001. “Langues et supranationalité en Europe: l’influence linguistique de l’Union européenne”. Terminogramme 99–100. 231–248. Urrutia Libarona, Iñigo. 2004. “Régimen jurídico de las lenguas y reconocimiento de la diversidad lingüística en el Tratado por el que se establece una Constitución para Europa”. Revista de Llengua i Dret 42.231–273. Vos, Ellen. 2000. “Reforming the European Commission: What Role to Play for EU Agencies?” Common Market Law Review 37: 5.1113–1134.

appendix

Selected provisions on language issues from EU law Treaty Establishing the European Community Article 21 Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195. Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.

Article 149 1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. 2. Community action shall be aimed at: – developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States, – (…)

Article 290 The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.

Article 314 This Treaty, drawn up in a single original in the Dutch, French, German, and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which shall transmit a certified copy to each of the Governments of the other signatory States.

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Pursuant to the Accession Treaties, the Bulgarian, Czech, Danish, English, Estonian, Finnish, Greek, Hungarian, Irish, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish versions of this Treaty shall also be authentic. [Source: Consolidated Version of the Treaty Establishing a European Community, Official Journal, C 321 E/1, 29 December 2006, p. 329]

Treaty on European Union Article 53 This Treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. Pursuant to the Accession Treaties, the Bulgarian, Czech, Estonian, Finnish, Hungarian, Latvian, Lithuanian, Maltese, Polish, Romanian, Slovak, Slovenian and Swedish versions of this Treaty shall also be authentic. [Source: Consolidated Version of the Treaty on European Union, Official Journal C 321 E/1, 29 December 2006, p. 327]

Treaty Establishing a Constitution for Europe Article I-2 The Union’s values The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men pre vail.

Article I-3 The Union’s objectives 3. (…) It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.

Article I-10 Citizenship of the Union 1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have: (…)



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(d) the right to petition the European Parliament, to apply to the European Ombudsman,   and to address the institutions and advisory bodies of the Union in any of the Constitu- tion’s languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted thereunder.

Article III-128 The languages in which every citizen of the Union has the right to address the institutions or bodies under Article I-10(2)(d), and to have an answer, are those listed in Article IV-448(1). The institutions and bodies referred to in Article I-10(2)(d) are those listed in Articles I-19(1), second subparagraph, I-30, I-31 and I-32 and also the European Ombudsman.

Article III-176 In the context of the establishment and functioning of the internal market, European laws or framework laws shall establish measures for the creation of European intellectual property rights to provide uniform intellectual property rights protection throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements. A European law of the Council shall establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.

Article III-282 1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and complementing their action. It shall fully respect the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function. Union action shall be aimed at: (a) developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States; (b) (…)

Article III-315 1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, direct foreign investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common

234 Appendix

commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action. 2. European laws shall establish the measures defining the framework for implementing the common commercial policy. 3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article III-325 shall apply, subject to the special provisions of this Article. The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules. The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations. 4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority. For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules. The Council shall also act unanimously for the negotiation and conclusion of agreements: (a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity; (b) (…)

Article III-433 The Council shall adopt unanimously a European regulation laying down the rules governing the languages of the Union’s institutions, without prejudice to the Statute of the Court of Justice of the European Union.

Article IV-448 Authentic texts and translations 1. This Treaty, drawn up in a single original in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. 2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council. [Source: Official Journal C 310, 16 December 2004]



Appendix 235

Protocol on the Statute of the Court of Justice Article 64 Until the rules governing the language arrangements applicable at the Court of Justice and the Court of First Instance have been adopted in this Statute, the provisions of the Rules of Procedure of the Court of Justice and of the Rules of Procedure of the Court of First Instance governing language arrangements shall continue to apply. Those provisions may only be amended or repealed in accordance with the procedure laid down for amending this Statute. [Note: This is a consolidated version of the Protocol on the Statute of the Court of Justice as amended following the accession of Bulgaria and Romania, Official Journal C 321E, 29 December 2006, p. 329.]

Rules of Procedure of the Court of Justice Article 29 1. The languages of a case shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish or Swedish. 2. The language of a case shall be chosen by the applicant, except that: (a) where the defendant is a Member State or a natural or legal person having the nationality of a Member State, the language of the case shall be the official language of that State;   where that State has more than one official language, the applicant may choose between  them; (b) at the joint request of the parties, the use of another of the languages mentioned in para- graph 1 for all or part of the proceedings may be authorized; (c) at the request of one of the parties, and after the opposite party and the Advocate General have been heard, the use of another of the languages mentioned in paragraph 1 as the   language of the case for all or part of the proceedings may be authorized by way of deroga- tion from subparagraphs (a) and (b); such a request may not be submitted by an institution of the European Communities. In cases to which Article 103 of these Rules applies, the language of the case shall be the language of the national court or tribunal which refers the matter to the Court. At the duly substantiated request of one of the parties to the main proceedings, and after the opposite party and the Advocate General have been heard, the use of another of the languages mentioned in paragraph 1 may be authorised for the oral procedure. Requests as above may be decided on by the President; the latter may, and where he wishes to accede to a request without the agreement of all the parties, must, refer the request to the Court. 3. The language of the case shall in particular be used in the written and oral pleadings of the parties and in supporting documents, and also in the minutes and decisions of the Court.

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Any supporting documents expressed in another language must be accompanied by a translation into the language of the case. In the case of lengthy documents, translations may be confined to extracts. However, the Court may, of its own motion or at the request of a party, at any time call for a complete or fuller translation. Notwithstanding the foregoing provisions, a Member State shall be entitled to use its official language when intervening in a case before the Court or when taking part in any reference of a kind mentioned in Article 103. This provision shall apply both to written statements and to oral addresses. The Registrar shall cause any such statement or address to be translated into the language of the case. The States, other than the Member States, which are parties to the EEA Agreement, and also the EFTA Surveillance Authority, may be authorised to use one of the languages mentioned in paragraph 1, other than the language of the case, when they intervene in a case before the Court or participate in preliminary ruling proceedings envisaged by Article 23 of the Statute. This provision shall apply both to written statements and oral addresses. The Registrar shall cause any such statement or address to be translated into the language of the case. Non-member States taking part in proceedings for a preliminary ruling pursuant to the fourth paragraph of Article 23 of the Statute may be authorised to use one of the languages mentioned in paragraph (1) of this Article other than the language of the case. This provision shall apply both to written statements and to oral statements. The Registrar shall cause any such statement or address to be translated into the language of the case. 4. Where a witness or expert states that he is unable adequately to express himself in one of the languages referred to in paragraph (1) of this Article, the Court may authorise him to give his evidence in another language. The Registrar shall arrange for translation into the language of the case. 5. The President of the Court and the Presidents of Chambers in conducting oral proceedings, the Judge-Rapporteur both in his preliminary report and in his report for the hearing, Judges and Advocates General in putting questions and Advocates General in delivering their opinions may use one of the languages referred to in paragraph 1 of this Article other than the language of the case. The Registrar shall arrange for translation into the language of the case.

Article 30 1. The Registrar shall, at the request of any Judge, of the Advocate General or of a party, arrange for anything said or written in the course of the proceedings before the Court to be translated into the languages he chooses from those referred to in Article 29(1). 2. Publications of the Court shall be issued in the languages referred to in Article 1 of Council Regulation No 1.

Article 31 The texts of documents drawn up in the language of the case or in any other language authorised by the Court pursuant to Article 29 of these Rules shall be authentic. [Note: This is a consolidated version of the Rules of Procedure of the Court of Justice as amended on 18 December 2006. It has no legal force and it is meant purely as a documentation tool]



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Rules of Procedure of the European Parliament Rule 138: Languages 1. All documents of Parliament shall be drawn up in the official languages. 2. All Members shall have the right to speak in Parliament in the official language of their choice. Speeches delivered in one of the official languages shall be simultaneously interpreted into the other official languages and into any other language the Bureau may consider neces sary. 3. Interpretation shall be provided in committee and delegation meetings from and into the official languages used and requested by the members and substitutes of that committee or delegation. 4. At committee and delegation meetings away from the usual places of work interpretation shall be provided from and into the languages of those members who have confirmed that they will attend the meeting. These arrangements may exceptionally be made more flexible where the members of the committee or delegation so agree. In the event of disagreement, the Bureau shall decide. Where it has been established after the result of a vote has been announced that there are discrepancies between different language versions, the President shall decide whether the result announced is valid pursuant to Rule 164(5). If he declares the result valid, he shall decide which version is to be regarded as having been adopted. However, the original version cannot be taken as the official text as a general rule, since a situation may arise in which all the other languages differ from the original text.

Rule 139: Transitional arrangement 1. During a transitional period extending until the end of the sixth parliamentary term, derogations from the provisions of Rule 138 shall be permissible if and to the extent that, despite adequate precautions, interpreters or translators for an official language are not available in sufficient numbers. 2. The Bureau, on a proposal from the Secretary-General, shall ascertain with respect to each of the official languages concerned whether the conditions set out in paragraph 1 are fulfilled, and shall review its decision at six-monthly intervals on the basis of a progress report from the Secretary-General. The Bureau shall adopt the necessary implementing rules. 3. The temporary special arrangements adopted by the Council on the basis of the Treaties concerning the drafting of legal acts, with the exception of regulations adopted jointly by the European Parliament and the Council, shall apply. 4. On a reasoned recommendation from the Bureau, Parliament may decide at any time to repeal this Rule early or, at the end of the period indicated in paragraph 1, to extend it.

Rule 143: List of speakers 1. The names of Members who ask leave to speak shall be entered in the list of speakers in the order in which their requests are received. 2. The President shall call upon Members to speak, ensuring as far as possible that speakers of different political views and using different languages are heard in turn.

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3. On request, however, priority may be given to the rapporteur of the committee responsible and to the chairmen of political groups who wish to speak on behalf of their groups, or to speakers deputising for them. 4. No Member may speak more than twice on the same subject, except by leave of the President. The chairman and the rapporteur of the committees concerned shall, however, be allowed to speak at their request for a period to be decided by the President.

Rule 176: Committees of inquiry 7. (…) With regard to the languages used, a committee of inquiry shall apply the provisions of Rule 138. However, the bureau of the committee: – may restrict interpretation to the official languages of those who are to take part in the deliberations, if it deems this necessary for reasons of confidentiality, – shall decide about translation of the documents received in such a way as to ensure that the committee can carry out its deliberations efficiently and rapidly and that the necessary secrecy and confidentiality are respected. 8. (…)

Rule 191: Right of petition 1. Any citizen of the European Union and any natural or legal person residing or having its registered office in a Member State shall have the right to address, individually or in association with other citizens or persons, a petition to Parliament on a matter which comes within the European Union’s fields of activity and which affects him, her or it directly. 2. Petitions to Parliament shall show the name, nationality and permanent address of each petitioner. 3. Petitions must be written in one of the official languages of the European Union. Petitions written in any other language will be considered only where the petitioner has attached a translation or summary drawn up in an official language of the European Union. The translation or summary shall form the basis of Parliament’s work. Parliament’s correspondence with the petitioner shall employ the official language in which the translation or summary is drawn up. 4. (…) [Source: 16th edition – June 2007. Text in italics indicates an interpretation of the Rules (pursuant to Rule 201).]



Appendix 239

The Charter of Fundamental Rights of the European Union Preamble The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter.

Chapter I: Dignity Article 1 Human dignity Human dignity is inviolable. It must be respected and protected.

Article 2 Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed.

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Article 3 Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: – the free and informed consent of the person concerned, according to the procedures laid down by law, – the prohibition of eugenic practices, in particular those aiming at the selection of persons, – the prohibition on making the human body and its parts as such a source of financial gain, – the prohibition of the reproductive cloning of human beings.

Article 4 Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.

Chapter II: Freedoms Article 6 Right to liberty and security Everyone has the right to liberty and security of person.

Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications.

Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.



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Article 9 Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.

Article 12 Freedom of assembly and of association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests. 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Article 13 Freedom of the arts and sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Article 14 Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

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Article 15 Freedom to choose an occupation and right to engage in work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.

Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected.

Article 18 Right to asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

Article 19 Protection in the event of removal, expulsion or extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

Chapter III: Equality Article 20 Equality before the law Everyone is equal before the law.



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Article 21 Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity.

Article 23 Equality between men and women Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

Article 24 The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

Article 25 The rights of the elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

Article 26 Integration of persons with disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

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Chapter IV: Solidarity Article 27 Workers’ right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.

Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

Article 29 Right of access to placement services Everyone has the right of access to a free placement service.

Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices.

Article 31 Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

Article 32 Prohibition of child labour and protection of young people  at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.



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Article 33 Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

Article 34 Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.

Article 35 Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Article 36 Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.

Article 37 Environmental protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

Article 38 Consumer protection Union policies shall ensure a high level of consumer protection.

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Chapter V: Citizens’ Rights Article 39 Right to vote and to stand as a candidate at elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot. Article 40 Right to vote and to stand as a candidate at municipal elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.

Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: – the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; – the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; – the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.

Article 43 Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.



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Article 44 Right to petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.

Article 45 Freedom of movement and of residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State.

Article 46 Diplomatic and consular protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.

Chapter VI: Justice Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.

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Article 49 Principles of legality and proportionality of criminal offences and penalties 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence.

Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

Chapter VII: General Provisions Article 51 Scope 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

Article 52 Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and



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scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein. [Source: Official Journal C 364, 18 December 2000, pp. 1-22]

Regulation No 1 determining the languages to be used by the European Economic Community THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY, Having regard to Article 217 of the Treaty which provides that the rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the rules of procedure of the Court of Justice, be determined by the Council, acting unanimously; Whereas each of the four languages in which the Treaty is drafted is recognised as an official language in one or more of the Member States of the Community; HAS ADOPTED THIS REGULATION:

Article 1 The official languages and the working languages of the institutions of the Community shall be Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish.

Article 2 Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community may be drafted in any one of the official languages selected by the sender. The reply shall be drafted in the same language.

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Article 3 Documents which an institution of the Community sends to a Member State or to a person subject to the jurisdiction of a Member State shall be drafted in the language of such State.

Article 4 Regulations and other documents of general application shall be drafted in the official languages.

Article 5 The Official Journal of the European Union shall be published in the official languages.

Article 6 The institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases.

Article 7 The languages to be used in the proceedings of the Court of Justice shall be laid down in its rules of procedure.

Article 8 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. This Regulation shall be binding in its entirety and directly applicable in all Member States. [Note: This is a consolidated version and includes the amendments introduced by the successive Acts of Accession and by Council Regulations No 920/2005 and No 1791/2006.]

Council Regulation (EC) No 930/2004 of 1 May 2004 on temporary derogation measures relating to the drafting in Maltese of the acts of the institutions of the European Union THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 290 thereof, Having regard to the Treaty on European Union, and in particular Articles 28 and 41 thereof, Having regard to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community(1) and to Council Regulation No 1 of 15 April



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1958 determining the languages to be used by the European Atomic Energy Community(2), which two Regulations are hereinafter referred to as “Regulation No 1” , Having regard to the Council Rules of Procedure, and in particular Article 14(1) thereof, Having regard to the request of 31 March 2004 by the Maltese Government, Whereas: (1) Following the accession of Malta to the European Union, and in accordance with Article 1 of Regulation No 1, Maltese is an official language and a working language of the institutions of the Union. (2) Accordingly, regulations and other documents of general application are to be drafted also in Maltese, as provided for in Article 4 of Regulation No 1. The Official Journal of the European Union should also be published in Maltese, as provided for in Article 5 of that Regulation. (3) It appears from contacts between the Maltese authorities and the European Union institutions that, due to the current situation regarding the recruitment of Maltese linguists and the resulting lack of qualified translators, it is not possible to guarantee the drafting in Maltese of all acts adopted by the institutions. (4) This situation will prevail for some time, pending the implementation of transitional measures taken in close cooperation between the Maltese authorities and the European Union institutions to remedy the lack of qualified translators. In the meantime, this situation should not have a negative impact on the activities of the Union, slowing the work of its institutions. (5) Article 8 of Regulation No 1 allows the Council, acting upon request of the Member State concerned, to decide on the use of languages as regards Member States which have more than one official language. According to the Constitution of Malta, Maltese and English are the official languages of Malta and every law is to be enacted in both the Maltese and English languages, the Maltese text prevailing in the case of conflict, unless provision is otherwise made. (6) In the light of the situation referred to above and on request by the Maltese Government, it is appropriate to decide that, on an exceptional and transitional basis, the institutions of the Union are not to be bound by the obligation concerning the drafting or translation of all acts, including judgments of the Court of Justice, in the Maltese language. However, it is appropriate that such derogation be partial and therefore to exclude from its scope regulations adopted jointly by the European Parliament and the Council. (7) The status of Maltese as an official language and a working language of the institutions of the Union remains unaffected. (8) At the end of the transitional period, all acts which at that time have not already been published in the Maltese language should also be published in that language, HAS ADOPTED THIS REGULATION:

Article 1 By way of derogation from Regulation No 1 and for a period of three years beginning on 1 May 2004 , the institutions of the European Union shall not be bound by the obligation to draft all acts in Maltese and to publish them in that language in the Official Journal of the European Union. This Article shall not apply to Regulations adopted jointly by the European Parliament and the Council.

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Article 2 Not later than 30 months after its adoption, the Council shall review the operation of this Regulation and determine whether to extend it for a further period of one year.

Article 3 At the end of the transitional period, all acts which at that time have not already been published in the Maltese language shall also be published in that language.

Article 4 This Regulation shall enter into force on 1 May 2004. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 1 May 2004. For the Council The President B. Cowen (1) OJ 17, 6.10.1958, p. 385/58. Regulation as last amended by the 2003 Act of Accession. (2) OJ 17, 6.10.1958, p. 401/58. Regulation as last amended by the 2003 Act of Accession. [Source: Official Journal L 169, 1 May 2004, pp. 1–2]

Council Regulation (EC) No 920/2005 of 13 June 2005 amending Regulation No 1 of 15 April 1958 determining the language to be used by the European Economic Community, and Regulation No 1 of 15 April 1958 determining the language to be used by the European Atomic Energy Community, and introducing temporary derogation measures from those Regulations THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 290 thereof, Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 190 thereof, Having regard to the Treaty on European Union, and in particular Articles 28(1) and 41(1) thereof, Whereas: (1) The Irish Government has requested that the Irish language be accorded the same status as that accorded to the national official languages of the other Member States and that the necessary amendments be made to that effect to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community [1] and to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European



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Atomic Energy Community [2], which two Regulations are hereinafter referred to as “Regulation No 1”. (2) It results from Articles 53 of the Treaty on European Union and 314 of the Treaty establishing the European Community that the Irish language is one of the authentic languages of each of these Treaties respectively. (3) The Irish Government stresses that, in accordance with Article 8 of the Constitution of Ireland, the Irish language as the national language is the first official language of Ireland. (4) It is appropriate to answer positively to the Irish Government’s request and to amend Regulation No 1 accordingly. It is however appropriate to decide that, for practical reasons and on a transitional basis, the institutions of the European Union are not to be bound by the obligation to draft and translate all acts, including judgments of the Court of Justice, in the Irish language. It is also appropriate to provide that such a derogation be partial, to exclude from its scope Regulations adopted jointly by the European Parliament and the Council and to empower the Council to determine unanimously, within a period of four years after the date of application of this Regulation and at five-yearly intervals thereafter, whether to put an end to that derogation, HAS ADOPTED THIS REGULATION:

Article 1 Regulation No 1 is hereby amended as follows: 1. Article 1 shall be replaced by the following: “Article 1 The official languages and the working languages of the institutions of the European Union shall be Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish.”; 2. Article 4 shall be replaced by the following: “Article 4 Regulations and other documents of general application shall be drafted in the 21 official languages.”; 3. Article 5 shall be replaced by the following: “Article 5 The Official Journal of the European Union shall be published in the 21 official languages.”

Article 2 By way of derogation from Regulation No 1 and for a renewable period of five years beginning on the day on which this Regulation applies, the institutions of the European Union shall not be bound by the obligation to draft all acts in Irish and to publish them in that language in the Official Journal of the European Union. This Article shall not apply to Regulations adopted jointly by the European Parliament and the Council.

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Article 3 Not later than four years after the date of application of this Regulation and at five-yearly intervals thereafter, the Council shall review the operation of Article 2 and determine unanimously whether to put an end to the derogation referred to in that Article.

Article 4 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union. It shall apply from 1 January 2007. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Luxembourg, 13 June 2005. For the Council The President J. Asselborn [1] OJ 17, 6.10.1958, p. 385/58. Regulation as last amended by the 2003 Act of Accession. [2] OJ 17, 6.10.1958, p. 401/58. Regulation as last amended by the 2003 Act of Accession. [Source: Official Journal L 156, 18 June 2005, pp. 3–4]

Council Conclusion of 13 June 2005 on the official use of additional languages within the Council and possibly other institutions and bodies of the European Union (2005/C 148/01) 1. These conclusions relate to languages other than the languages referred to in Council Regulation No 1/1958 whose status is recognised by the Constitution of a Member State on all or part of its territory or the use of which as a national language is authorised by law. 2. The Council considers that, in the framework of efforts being made to bring the Union closer to all its citizens, the richness of its linguistic diversity must be taken more into consideration. 3. The Council believes that allowing citizens the possibility of using additional languages in their relations with the Institutions is an important factor in strengthening their identification with the European Union’s political project. 4. The official use of the languages referred to in paragraph 1 will be authorised at the Council on the basis of an administrative arrangement concluded between the latter and the requesting Member State, and possibly by another Union Institution or body on the basis of a similar administrative arrangement. 5. These arrangements will be concluded in accordance with the Treaty and with the provisions adopted for its implementation and must comply with the conditions below. The direct or indirect costs associated with implementation of these administrative arrangements by the Union’s Institutions and bodies will be borne by the requesting Member State. (a) Making public of acts adopted in codecision by the European Parliament and the Council The government of a Member State will be able to send the European Parliament and the Council a certified translation of acts adopted in codecision into one of the languages referred to in



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paragraph 1. The Council will add that translation to its archives and provide a copy of it on request. The Council will ensure that these translations are published on its Internet site. In both cases, attention will be drawn to the fact that the translations in question do not have the status of law. (b) Speeches to a meeting of the Council and possibly other Union Institutions or bodies The government of a Member State will, if necessary, be able to ask the Council, and possibly other Institutions or bodies (European Parliament or Committee of the Regions), for permission to use one of the languages referred to in paragraph 1 in speeches by one of the members of the Institution or body in question at a meeting (passive interpreting). In the case of the Council, this request will in principle be granted, provided it is made reasonably in advance of the meeting and the necessary staff and equipment are available. (c) Written communications to Union Institutions and bodies Member States will be able to adopt a legal act providing that, if one of their citizens wishes to send a communication to a Union Institution or body in one of the languages referred to in paragraph 1, he or she shall send the communication to a body designated by that Member State. That body will send the Institution or body in question the text of the communication, with a translation into the language of the Member State referred to in Council Regulation No 1/1958. The same procedure will apply mutatis mutandis to the reply from the Institution or body in question. Where the Union Institutions or bodies have a fixed period of time in which to reply, that period will commence from the date on which the Institution or body in question receives the translation into one of the languages referred to in Council Regulation No 1/1958 from the Member State. The period will cease on the date on which the Union Institution or body sends its reply to the competent body of the Member State in the latter language. The Council invites the other Institutions to conclude administrative arrangements on this basis. [Source: Official Journal C 148, 18 June 2005, pp. 1–2]

Administrative Arrangement between the Kingdom of Spain and the Council of the European Union (2006/C 40/02) The Kingdom of Spain, of the one part, and the Council of the European Union, of the other part, Having regard to the conclusions adopted by the Council on 13 June 2005 on the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union, Whereas there are languages within the Union other than those referred to in Council Regulation No 1/1958 whose status is recognised by the Constitution of a Member State in all or part of its territory or the use of which as a national language is authorised by law, Whereas, in the framework of efforts being made to bring the Union closer to all its citizens, the richness of its linguistic diversity must be taken more into consideration, and whereas allowing citizens the possibility of using these other languages in their relations with the Institutions is an important factor in strengthening their identification with the European Union’s political project,

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Have agreed to conclude this ADMINISTRATIVE ARRANGEMENT to allow the official use at the Council of the languages other than Castilian (Spanish) whose status is recognised by the Spanish Constitution.

Written communications to the Council of the European Union 1. Where, in application of Spanish law, a Spanish citizen wishes to send the Council a communication written in a language other than Castilian (Spanish) whose status is recognised by the Spanish Constitution: (a) He shall send the communication to the competent body designated by the Spanish Government for that purpose, which shall forward it to the General Secretariat of the Council with a translation of the communication into Castilian (Spanish); the date of receipt of the communication, particularly in cases where the Council has a fixed period of time in which to reply to the citizen, shall be the date on which the Council receives the translation from that body. (b) The Council shall send its reply in Castilian (Spanish) to the said body, tasked by the Spanish Government with providing the citizen with a translation of the reply in the language of the communication. (c) In no case is the Council’s responsibility engaged by these translations; a specific reference to this will be made in the text of the translations. 2. Where the citizen who wrote the communication has a fixed period of time in which to act on the Council’s reply, and by derogation from paragraph 1(a), the Council will send its reply in Castilian (Spanish) directly to the citizen at the same time as to the competent body. In that reply, the Council will draw the citizen’s attention to the fact that the fixed period of time in which he has to act on that reply will commence from the date on which the reply is received in Castilian (Spanish). The Council will send a copy of its reply to the competent body tasked by the Spanish Government with providing the citizen with a translation of the reply in the language of the communication. The Council will inform the citizen in question of such dispatch. In no case is the Council’s responsibility engaged by these translations; a specific reference to this will be made in the text of the translations. 3. If a Spanish citizen sends a communication directly to the Council in one of the languages referred to in paragraph 1, the Council shall return the communication to the sender, informing him of the possibility of addressing the communication to the Council in that language via the competent body designated for that purpose by the Spanish Government. 4. The parties to this administrative arrangement undertake to adopt the necessary measures to maintain standards for the confidentiality of the communications covered by this arrangement at every stage, particularly as regards the translation made by the competent body designated by the Spanish Government.

Speeches to a meeting of the Council 5. The use, where necessary, by a Spanish representative at a Council meeting of one of those languages, other than Castilian (Spanish), whose status is recognised by the Spanish Constitution, shall be possible under the following conditions: (a) At the beginning of each six-month period, the Permanent Representation of Spain shall send the General Secretariat of the Council an indicative list of those Council meetings where a request to use one of the above languages is likely to be made.



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(b) At least seven weeks before the Council meeting, the Permanent Representation of Spain shall send the General Secretariat of the Council the request for a Spanish representative to use one of the above languages during his speeches (passive interpretation); definite confirmation of the request will be made at the latest 14 calendar days before the Council meeting. (c) In principle the request will be acceded to, unless the General Secretariat of the Council, having consulted DG SCIC, informs the Permanent Representation of Spain that the necessary staff and equipment are not available. 6. The direct and indirect costs of passive interpretation, including in the case of cancellation, as invoiced to the Council by DG SCIC, will be paid by the Permanent Representation of Spain in accordance with paragraphs 11 and 12 below.

Making public of acts adopted in codecision 7. The Spanish Government, or the body which it designates for the purpose, may make certified translations into the above languages of acts of the European Union adopted in codecision, as published in the Official Journal of the European Union, and forward them to the General Secretariat of the Council by electronic means. 8. The Council shall add those certified translations to its archives and shall provide copies on request to any citizen of the Union, as far as possible by electronic means. 9. The Council shall establish a link from its Internet site to the Spanish Government website offering such translations. A mention of the fact that those translations do not engage the responsibility of the Institutions of the Union and have no legal value shall also appear on the Council’ s Internet site in the official and working languages. 10. In each certified translation, attention will be drawn to the fact that the translation does not engage the responsibility of the Institutions of the Union and has no legal value. A statement to that effect will be made, in the language concerned, on the first page of each certified translation and as a header on each of the following pages, as well as on the home page of the Spanish Government Internet site on which they are available.

Costs 11. The Spanish Government shall assume the direct or indirect costs resulting from implementation of this administrative arrangement as regards the Council. 12. To this end, the General Secretariat of the Council shall present a note to the Permanent Representation of Spain setting out the above costs in detail every six months. This sum must be reimbursed by the Permanent Representation of Spain within one month from the date of notification.

Final provisions 13. This arrangement will apply from the date on which the Spanish Government informs the General Secretariat of the Council of the body which it has designated to make the translations referred to in paragraphs 1, 2 and 7, subject to the General Secretariat of the Council having informed the Spanish Government that the measures necessary for the implementation of this arrangement by the General Secretariat of the Council have been put in place. 14. The parties may agree by common accord to revise or terminate this administrative arrangement. The parties shall examine its implementation one year after its entry into force. [Source: Official Journal C 040, 17 February 2006, pp. 2–3]

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Administrative Agreement between the European Commission and the Kingdom of Spain (2006/C 73/06) The European Commission, of the one part, and the Kingdom of Spain, of the other part, Having regard to the conclusions adopted by the “General affairs and external relations” Council of the European Union, meeting on 13 June 2005, with regard to the official use of additional languages in the Council and, where appropriate, in other institutions and bodies of the European Union, Whereas: (1) The efforts made to bring the Union closer to its citizens require that, as far as possible, both they and their representatives are able to communicate with the institutions in their mother tongue, which is an important factor in strengthening their identification with the Union’s political project. (2) In the Union there are languages other than those referred to in Council Regulation No 1/1958 whose status is recognised by the Constitution of a Member State in the whole or a part of its territory or whose use as a national language is authorised by law, AGREE to conclude this ADMINISTRATIVE AGREEMENT to allow the official use in the European Union of, in addition to Spanish or Castilian, the other languages which in Spain enjoy a status recognised by the Spanish Constitution of 1978.

Article 1 Spanish citizens, or any other natural or legal person residing or established in Spain, shall be entitled, under the terms of Spanish law and in accordance with the conclusions of the Council of 13 June 2005, to address their written communications to the European Commission in any of the languages which, under the Spanish Constitution, have official status within Spanish territory. 1.1 When the language used is not Spanish/Castilian, this option shall be exercised by means of the following procedure: – The citizen shall address his written communication to the competent body designated by Spanish law, which will send it to the European Commission together with a certified translation into Spanish/Castilian done by that body. – The date of receipt of the communication, particularly in cases where the Commission has a time limit for sending a reply to the citizen, shall be that on which the Commission receives the certified translation from the said body. – The European Commission shall draft its reply in Spanish/Castilian and send it to the abovementioned competent body. – This body shall send to the person concerned, as soon as possible, the Commission’s reply together with its certified translation into the language of the original document.



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– If the competent departments of the Commission decide to reply in the language of the original document, they may do so and send their reply directly to the person concerned. – The Commission shall not be held liable for any errors of translation into a language other than Spanish/Castilian or for any misinterpretation of the reply as a result of such errors. This condition shall be stated explicitly in the text of the translations. 1.2 Unless the Commission’s departments are able and willing to do the translation themselves, the Commission shall return to the sender any communications that it receives in languages other than Spanish/Castilian which in Spain enjoy a status officially recognised by the Spanish Constitution of 1978 and that are not accompanied by a certified translation into Spanish/Castilian. In such cases, the Commission shall inform the person concerned that the exercise of his right to address this institution and to obtain a reply in the language of his choice must be done by sending the communication in the said language to the body designated for this purpose by Spanish law. 1.3 When the citizen who is the author of the communication has a time limit for acting on the Commission’s reply and notwithstanding the provisions of Article 1.1., the Commission shall send its reply in Spanish/Castilian directly to the citizen at the same time as to the competent body. In its reply, the Commission shall remind the citizen that the time limit for acting on the reply will start from the date of receipt of the reply in Spanish/Castilian. The Commission shall send a copy of its reply to the competent body so that the latter can provide the citizen with a translation thereof in the language of the communication; in its reply, the Commission shall also draw the citizen’s attention to this fact. The Commission shall not under any circumstances be held liable for these translations. This condition shall be stated explicitly in the text of the translations. 1.4 If the Commission has to reply within a given period, this shall begin from receipt of the original document accompanied by a certified translation into Spanish/Castilian. This period shall end once the Commission has sent its written reply in Spanish/Castilian to the competent body designated by Spanish law or from the time when the Commission sends directly to the person concerned its reply in the language of the original document. 1.5 The parties to this administrative agreement undertake to adopt the necessary measures to maintain at all times the confidentiality of the communications referred to herein, particularly as regards the translation done by the competent body designated by Spanish law.

Article 2 The Spanish Government shall bear the European Commission’s direct or indirect costs arising from the application of this administrative agreement. Once a year, the competent departments of the Commission shall apply to the Spanish authorities for reimbursement of the expenditure incurred, calculated as a lump sum, on the basis of the number of pages translated by them in accordance with the procedure provided for in this agreement.

260 Appendix

Final provision This agreement shall enter into force once the Spanish Government has notified the SecretariatGeneral of the Commission of the bodies designated by Spanish law as the competent bodies for making the translations referred to in Article 1. Brussels, 21 December 2005. The Commission of the European Communities and the Kingdom of Spain Carlos Bastarreche Ambassador Permanent Representative Catherine Day Secretary-General [Source: Official Journal C 073, 25 March 2006, pp. 14–15]

Contributors

Xabier Arzoz is a Lecturer in Administrative Law at the University of the Basque Country. He specialised in EC Law at the University of Saarland, Germany. His research interests include EC and Spanish administrative law, fundamental rights, federalism and autonomy, linguistic diversity, and the European Charter of Regional or Minority Languages. He is the author of two monographs in Spanish, concerning the executive power and the execution of EC law and the relationship between Administration and citizens, and of an administrative law textbook in Basque. He was the Basque Visiting Fellow 2004/05 at St Antony’s College, University of Oxford. Bruno de Witte is Professor of European Union Law at the European University Institute, Florence and co-director of the Academy of European Law at the EUI. He was previously Professor of Europe­an Law at the Universiteit Maastricht (The Netherlands), from 1989 to 2000. He has published widely in the field of constitutional law of the European Union and the European, international and comparative legal regulation of culture, media, education, and languages, and the protection of minorities. Recently co-edited volumes include The Many Faces of Differentiation in EU Law (2001), Ten Reflections on the Constitutional Treaty for Europe (2003), Social Rights in Europe (2005) and Genesis and Destiny of the European Constitution (2007). François Grin is currently Professor of Economics at the School of Translation and Interpretation at the University of Geneva, and visiting Professor at the Università della Svizzera Italiana, where he teaches the course on linguistic diversity management. He has worked at the Universities of Montréal and of Washington (Seattle). From 1998 to 2001, he served as Deputy Director of the European Centre for Minority Issues (ECMI) in Flensburg, Germany. He has specialized in language economics, education economics, and policy evaluation in these areas. He is the author of numerous publications, including Language Policy Evaluation and the European Charter for Regional or Minority Languages (2003). Peter Hilpold is Professor of Public International Law, European Law and Comparative Public Law at the University of Innsbruck. He has published widely in the field of international law, law of the European Union, international economic law, and Italian tax law. His many publications include a major monograph on minority rights, Modernes Minderheitenrecht. Eine rechtsvergleichende Untersuchung des Minderheitenrechts in Österreich und in Italien unter besonderer Berücksichtigung völkerrechtlicher Aspekte (2001) and contributions to the edited volume The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities (2005).

262 Contributors

Patxi Juaristi is a Lecturer in Politics at the University of the Basque Country. He has written on globalization, Basque language and culture, and world linguistic diversity. He was a member of the technical committee of the research project “Words and Worlds” (World Languages Report) promoted by UNESCO and the Basque Government. The final report was published in English (Words And Worlds: World Languages Review, 2005) and in many other languages. Currently, he is doing research on the use of Basque in schools among Basque children. Peter A. Kraus holds the Chair of Ethnic Relations at the Centre for Research on Ethnic Relations and Nationalism, University of Helsinki. He has published widely on the problems of democratic transition and consolidation, politics in Southern Europe, cultural diversity and identity politics, and the present dilemmas of European integration. Kraus’s recent work has focused on the implications that cultural pluralism and multilingualism have for European polity-building. His current research interests are the dynamics of transnationalism and democracy in Europe and comparative federalism. His book A Union of Diversity. Language, Identity and Polity-Building in Europe will be published by Cambridge University Press in 2008. Antoni Milian-Massana is Professor of Administrative Law at the Universitat Autònoma of Barcelona. He has published widely on the legal status of languages in Spain and in the EU. His publications include Derechos lingüísticos y derecho fundamental a la educación (1994), Público y privado en la normalización lingüística (2000), La igualtat de les llengües a les institucions de la Unió Europea, mite o realitat? (2003) and “L’ émergence du nouveau droit linguistique dans l’Union européenne” (The Supreme Court Law Review 2006). He is the current Director of Revista de Llengua i Dret, a Catalan periodical devoted to administrative and legal language, legal status of languages and language planning. Timothy Reagan is Professor of Educational Leadership at Central Connecticut State University in New Britain, Connecticut. His research interests include educational language policies, foreign language education, and the education of cultural and linguistic minority groups. He has published extensively in all of these areas, and recent publications include Language, Education, and Ideology (2002), The Foreign Language Educator in Society (with Terry A. Osborn, 2002), Language in the 21st Century (ed., with Humphrey Tonkin, 2003) and Critical Questions, Critical Perspectives: Language and the Second Language Educator (2005). He also edits the journal Critical Inquiry in Language Studies. Niamh Nic Shuibhne is a Reader in EC Law at the University of Edinburgh. She has published widely on the legal status of the Irish language and on (minority) language rights generally, on the free movement of goods and persons, and the protection of fundamental rights under EC law. She is currently engaged in work on EU citizenship, and on discrimination in the Internal Market more generally. Publications include EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights (2002) and Regulating the Internal Market (ed., 2006). Humphrey Tonkin is University Professor of the Humanities and President Emeritus at the University of Hartford, USA. His areas of expertise include language policy and planning, literary studies, translation, and international exchange. He chairs the Center for Research and Documentation on World Language Problems and edits its journal Language Problems and Language Planning. Publications include a translation of Tivadar Soros’s Masquerade (2001),



Contributors 263

Language in the 21st Century (ed., with Timothy Reagan, 2003), and Service-Learning Across Cultures (2004). Philippe van Parijs is Professor at the Université Catholique de Louvain, where he directs the Hoover Chair of Economic and Social Ethics, and at Harvard University, Department of Philosophy. He has published widely on justice, democracy and the future of the welfare state. He is editor of Cultural Diversity versus Economic Solidarity (2004) and is currently working on a book entitled Linguistic Justice for Europe and the World.

Index

A Accession Acts and Treaties  177, 197, 199, 201 administrative arrangements 211–212, 214–216, 255–257, 258–260 Advocate-General Miguel Poiares Maduro  132–133 Advocate-General Francis Jacobs  115–116 Advocate-General Siegbert Alber  112 affirmative action  161–162 Albanian language  50, 60 Albanian minority schools case 155 Angonese case  182 Annamalai, E.  4 Arabic language  49, 51, 60 Aragones language  50, 60, 62 Armenian language  50, 60, 62 assimilation  58, 64 Asturian language  50, 60, 62 authentic Treaty versions  125, 134, 205 autochthonous languages in the EU  5, 148 in Europe  86 B Ballantyne case  185 Basque language  6, 7, 10, 50, 60–61, 64–66, 136, 178, 184, 194, 200, 202–204, 207, 209–211, 213–214, 216, 220 Baumbast case  114 Belarusian language  50, 60 Bickel and Franz case  107–108, 110, 115–119

bills of rights  152, 155 bilingual states  67 biodiversity  3–4, 18, 22–23, 27, 28 Bosnian language  50, 60 Breton language  50, 60, 62, 64 Bulgarian language  51, 59 C Canadian Charter of Rights and Freedoms  147 Capotorti, Francesco  157 Castilian language (see Spanish language) Catalan language  6–7, 10, 51, 59, 64–66, 136, 138, 178–179, 184, 194, 198–199, 202–204, 207, 209–211, 213–214, 216, 220 Charter of Fundamental Rights  of the European Union  5, 10–11, 26, 118, 164,  175–176, 199, 239–249 Article 10  185 Article 11  185–186 Article 14  186 Article 20  162 Article 21  131, 147, 149, 152, 155, 158, 162, 175, 179 Article 22  10, 26, 119, 127, 145–165, 183–184, 198–199, 201 Article 23  156 Article 24  156 Article 25  156 Article 41  176–177 Article 41(4)  175–176 Article 51  159 Article 52  160

Article 52(3)  186 Article 52(5)  160–161 Cimbrian language  69 citizens’ rights  176–177 Committee of the Regions  197, 214, 216 communicative efficiency  99 Community competence  126, 162 Community Courts: see European Court of Justice Community Patent, draft Regulation on the  131 Community programmes and actions: see European Union programmes and actions constitutional discourse  87 constitutional traditions common to Member States 150–151 Constitutional Treaty: see Treaty establishing a Constitution for Europe Convention charged with the drafting of the Charter of Rights  147–150, 152, 158 Convention on the Future of Europe  128–129, 134 Cornish language  56, 60, 62, 64 Corsican language  51, 60, 62, 64 Council Conclusion of 2005 on additional languages   137–138, 203, 209–217, 219– 220, 254–255 Council of Europe  1, 4, 88–90, 119, 197, 199

266 Index

Council of the European Union 6–7, 131, 136, 138, 179, 193, 200–201, 210–212, 214–216 Council Regulation  No 930/2004  250–252 Council Regulation  No 920/2005  252–254 Court of Auditors  197 Croatian language  51, 60–61, 207 cultural diversity  1–3, 28, 31, 33, 87–88, 97, 127, 150–152, 159–160 cultural freedom  28–29 Cypriot Arabic language  51, 60, 62 Cyprus v Turkey case  186 Czech language  51, 58 D Danish language  51, 59, 178 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities  157 D’Hoop case  113–114 dialects  37, 47, 48, 198 differentiated integration  98 diglossia  22, 37 direct applicability  114, 196 discrimination  115, 119, 132, 138, 152, 175, 179–184 distributive justice  29, 30, 32–33, 37 diversity  152 deep diversity  98 dimensions of  8, 17–20 inventory diversity  23 permissive diversity  96 double standard  7–8, 184 Dutch language  51, 58, 66–67, 177 Dyen index  20 E EC law, general principles of  130, 151, 176 economic solidarity and local linguistic diversity 29–33

and territorial linguistic diversity  33–37 Economic and Monetary Union 90, 93 Economic and Social Committee 197, 216 efficiency  4, 74, 81, 99, 125, 131 Ekin case  185 endangered languages  5, 8 enforceable right  161, 163 English language  20, 51, 58–59,  64–65, 67, 77–80, 194, 196,  201 as a EU working language 73, 95, 138, 178, 218 as a world language  21–22, 85, 96 and inequality among  speakers  156 European English  95–96, 99 number of native speakers in the EU  58 number of speakers in the EU  156 in the European Union  73 enlargements of the European Union  5, 88, 98, 117–118, 123, 127–129, 138, 146, 179, 199, 201–202, 217 equal dignity  11 equality of languages  88, 130, 135, 138, 177–178 equality principle (see nondiscrimination principle) Esperanto language  69, 77–79, 81 Estonian language  51, 59 Euro (currency)  92–93 Eurojust case  132–133, 136–138 Euromosaic study  198 Europass initiative  126 European Agency for Linguistic Diversity and Language Learning  127, 139 European Bureau for Lesser Used Languages  69, 148, 198 European citizenship  9, 97–78, 107–120, 125, 139 European civil society  99

European Charter for Regional or Minority Languages  5, 65, 88–89, 127, 151, 155 European Commission  49, 73, 92, 127, 131, 134, 181, 197–200, 216 European Constitution: see Treaty establishing a Constitution for Europe European Convention of Human Rights  133–134, 150, 152, 179, 185–186 European Council  179 European Court of Human Rights  150, 185–186 European Court of Justice   9–10, 91, 107–117, 123, 126, 130, 132, 138, 150–151, 176, 178, 180–181, 183, 186, 197, 235–236 European Ombudsman  197, 210–211 European Parliament  7,  127–128, 134, 152, 197–198, 200, 214–217, 237–238 European Union fundamental freedoms (see market freedoms) languages  50–56 languages without institutional recognition   198–200 membership and eligibility conditions  158, 199 official languages  5, 88, 124, 192–197, 201, 220 programmes and actions 154, 197–200 Comenius  198–199, 202, 204, 206 Culture 2000  183 Cultural (2007–2013) 183 Lingua  95, 184, 198–199, 202, 204, 206, 211 Media 2007  183 Socrates  184, 198, 204, 211 speakers of languages  58–63 threatened languages  62, 64, 66 working languages  88, 94–95, 126, 178, 201



ethical imperative  1, 4 external communication  93, 95, 133, 179 F fairness  8, 30, 33, 74, 81, 125 Faroese language  51, 60, 65 Federalist Papers  97 Finnish language  51, 59, 64, 67 Fishman, Joshua A.  8 Framework Convention for the Protection of National Minorities  5, 88, 119, 147, 151, 157 Franco-Provençal language  51, 60, 64 freedom of expression  2, 175, 185–186 freedom of religion  185 free movement of persons  91, 108–113, 126, 180 French language  20, 52, 58–59, 66–67, 73, 77–80, 95, 177–178, 186, 194 Frisian language  52, 60, 65–66 Friulian language  52, 60, 65 Fun Radio decision  186 fundamental rights discourse  163 G Gagauzian language  52, 62 Galician language  7, 10, 52, 59, 65–61, 36, 194, 200, 204, 207, 209–211, 213–214, 216 generalized fractionalisation index  19 German language  20, 48, 52,  58, 66–67, 73, 77–80, 95,  156, 177–178, 182–183, 194 varieties of  48–49 Gini coefficient  24–25 globalisation  1 Greek language  52, 58, 67 Groener case  181 Grzelzcyk case  111–112, 114, 118 H Habermas, Jürgen  98 Hallstein, Walter  87

Index 267

hegemonic language regime   76–80 Herfindal index of industrial concentration  18 hierarchy among languages  10, 124, 128 among Charter obligations 159 human rights  2–3, 88–89, 118, 151, 155, 158, 164, 185–186 Human Rights, European Convention of  133–134, 150, 152, 179, 185–186 Hungarian language  52, 58 Hungarian minorities  118

isolation index  24 Italian language  52, 58, 64, 177, 182

I Icelandic language  201 identity  74–75, 93 cultural  87, 164 European 90, 97–98, 108, 111, 154 linguistic  87, 164 minority  86, 154 multiple  164 national  86–87, 89, 94, 146, 149, 151–153, 181 non-standardized  92 regional  149 subnational  146 immigrant communities, languages of  32, 49, 63, 154 indices of fractionalisation   18–20 indices of linguistic diversity 18–20 integral multilingualism  88, 93–94 internal communication   93–94, 126, 133, 135, 179 International Covenant on Civil and Political Rights, Article  27 149, 157, 161, 163–164 international organisations 145, 177 Irish language  6–7, 52, 60–61, 64, 67, 124, 135–136, 138, 184, 192, 194–197, 201–202, 211–212, 217, 252–254

L Ladin language  52, 60, 65 language equality: see equality of languages language federation  66 language funding  10, 127, 183–184 language of labelling  202 languages of the Treaties/ Constitution  7, 153, 192, 196–197, 202, 208, 217–218, 220 language policy in the EU  11, 68, 81, 95–97, 123–124, 126, 128, 137–138, 163, 175; in the Member States   63–67, 126 language portfolio  126 language regimes  76–81 language rights  9, 68, 74, 89, 107–108, 115, 117–118, 127, 129, 133, 177, 179, 184, 186 language standardization  6, 86, 87 languages that are official in all or part of the Member States’ territory  153, 203–220 Latgalian language  52–53, 60, 62 Latvian language  53, 59 Lesser Used Languages, European Bureau for  69, 148, 198

J justice as equal dignity  36–37 as equal opportunity  36 K Karaim language  56, 60, 62 Karelian language  52, 60, 62 Kashubian language  52, 60, 62, 64 Kik cases  108, 116–117, 120, 130–33, 137, 178

268 Index

Lëtzeburgesch (Luxembourgian language)  6, 48, 53, 61, 67–68, 184, 194–195, 198–199, 208 Lévi-Strauss, Claude  25 legal certainty  125, 196, 210, 216–217 lingua franca  21–23, 25–26, 35, 37, 86, 96 linguistic distance  20, 22 homogeneity  7, 30, 87,  180 inclusiveness  125 justice  9, 11, 80 proficiency  180–182 repertoires  20–22, 86 territoriality  30, 34–37 linguistic diversity levels  8, 23–25 notion  152–153 Lithuanian language  53, 59 Livonian language  56, 60, 62 local diversity  23–25 loyalty principle  118 Luxembourgian language: see Lëtzeburgesch M Macedonian language  53, 62 Maltese language  6–7, 53, 61, 67, 129, 136, 178–179, 194–196, 201–202, 211, 217, 250–252 Manx language  56, 60, 62, 64 market freedoms  91, 108–112, 115–116, 126, 186, 219 market integration  87, 90–92, 99 market standardization  4, 91 Martínez Sala case  110, 114 Meänkieli language  48, 53, 61–62, 64, 68 Meillet, Antoine  22, 26–27 minimex (allowance)  112 minimex language use  21–23 minorities  1, 3, 86, 89, 94, 99, 118, 146, 152, 155, 157–158, 160–161, 163–164, 199 minority languages  61, 123–129, 133, 153, 179–180, 182, 184–185, 198, 202, 206, 219

minority language initiatives 127–128 minority protection  5, 88–89, 107, 111, 119, 126, 146, 147–150, 156–158, 163–164, 185 minority rights  107–108, 129, 156–157, 163, 185 Mirandese language  53, 62, 64 mirror representation  94 monarchic language regime   76–80 monolingual states  63–64 mother tongue education  186 multiculturalism policies   30–32 multilingualism  4, 21, 88, 91, 93–94, 99–100, 139, 179, 196 multilingual states  67 N nationalism  75 national minorities  207, 231 National Minorities, Framework Convention for the Protection of  5, 88, 119, 147, 151, 157 nation-state  1, 4, 7, 86–87, 89, 94, 145 new minorities  119, 156 non-discrimination principle 10, 111–112, 116, 130–132, 146, 149, 155, 158, 162, 179–181 Norwegian language  202 O Occitan language  53, 59, 64–66 official and working languages   88, 93, 125, 176, 192–196, 201–203, 211–213, 217–218 oligarchic language regime   77–80 ordre public européen  118 Organisation for Security and Co-operation in Europe  199 P panarchic language regime   77–80 Pasolini, Pier Paolo  92 policy analysis  74–75, 81 Polish language  53, 58

political integration  87 Portuguese language  53, 59 positive obligations  161 probability-sensitive learning   21–23 proportionality principle  160, 187 R Race Discrimination Directive   182 radio quotas  186 recognition  86, 94, 207–208, 210–211, 213, 215, 219 regional languages  127, 152–153, 179–180, 184, 198, 206, 218–220 Regional or Minority Languages, European Charter for  5, 65, 88–89, 127, 151, 155 Regulation No 1/58  7, 73, 125, 130, 133, 135–137, 176–178, 193, 195–196, 200–201, 203, 209, 212–213, 217–218 resource allocation  9, 74–75,  81 resource distribution  9, 74–75, 81 right of petition  197 to an interpreter  185 to communicate in the  languages of the  Treaties  175, 179 to education  175, 186 to good administration   176 to good linguistic  administration  176–179 to mother tongue education  186 to move: see free movement of persons to use a minority language in official communications   207 to use one’s own language   207, 217 Romanian language  54, 58 Romani language  53–54, 59, 64–65



Rules of Procedure of the Court of Justice  125, 195, 235–236 Rules of Procedure of the European Parliament   237–238 Russian language  54, 59–60, 64 Rusyn language  48, 54, 61–62, 68 S Sami language  54, 61–62, 64, 67, 199–200, 208 Sardinian language  54, 59, 65 Scottish Gaelic language  54, 62, 64, 69 Security and Co-operation in Europe, Organisation for   199 Serbian language  55 sign languages  57–58, 64, 69, 154 Simpson index of fractionalisation  18, 19, 29 Skutnabb-Kangas, Tove  27 Slovak language  55, 59 Slovenian language  55, 59 Slovene citizens  118 Sorbian language  55, 62 Spanish language  31, 55, 58–59, 210, 216, 217 Spanish Memorandum  209, 211, 213, 215 Statute of Autonomy of Catalonia  220 Statute of the Court of Justice   195 Structural Funds  154 subsidiarity principle  76, 99, 146, 160 sub-state authorities  6, 155 Swedish language  55, 59, 67

Index 269

synarchic language regime   76–80 T Tatar language  55, 62, 64 Taylor, Charles  98 technocratic language regime   76–80 territorial diversity  23–25 transfers  75 to native speakers of English   80 translated Treaty versions   134–135 translation and interpretation   179 costs  80, 129, 136, 177, 215, 218 errors  215, 218 non-official  205, 209, 214–215, 218 number of directions  76, 78, 79 relevance of  100 responsibility for  135–136, 205, 214–215, 218 rights of  133 strains on services of  129 temporary derogations  136, 195, 211 transnational democracy  96, 100 Treaty establishing a Constitution for Europe  5, 11, 117, 123, 128, 131, 134, 136, 147, 152, 158–159, 162–164, 196–197, 201–208, 218, 220, 232–235 Treaty Establishing the European Community   231–232

Treaty of Amsterdam  150, 176–177, 196–197 Treaty of the European (Economic) Community   87–88, 90, 108–109, 114, 150, 176, 193, 196, 210 Treaty of Maastricht  108–109, 127, 177 Treaty of Nice  129, 177, 195–196 Treaty of Rome (see Treaty of the European (Economic) Community) Treaty on European Union   109, 112, 150, 193, 196 triple symmetrical relay  77–80 Tsakonian dialect  48–49 Turkish language  6, 55, 61, 67, 129 U Ukrainian language  55 UNESCO  1–2 United Nations  90, 157 Universal Declaration on Cultural Diversity  1–2, 153, 164 V Valencian language  209 Vöro language  69 W Walachian language  55, 62 Weber, Max  86 Weinreich, Max  48 Welsh language  6, 56, 61–62, 64–65, 184, 207 World Languages Report  48 Y Yiddish language  56, 62, 64

In the series Studies in World Language Problems the following titles have been published thus far or are scheduled for publication: 2 1

Arzoz, Xabier (ed.): Respecting Linguistic Diversity in the European Union. 2008. viii, 269 pp. Tonkin, Humphrey and Timothy Reagan (eds.): Language in the Twenty-First Century. Selected papers of the millennial conferences of the Center for Research and Documentation on World Language Problems, held at the University of Hartford and Yale University. 2003. vi, 209 pp.