The Translation of European Union Legislation

A Corpus-based Study of Norms and Modality

Francesca Seracini

• Publisher: LED Edizioni Universitarie
• Year: 2020
• eBook ISBN: 9788855130158
• Topic: Lingue e linguistica
• Subtopic: Studi sulla comunicazione

This volume is a study into the norms that come into play in the translation of European Union legislation. With a focus on expressions of modality, the study adopts a corpus-based Descriptive Translation Studies approach to analyse the translation strategies used in a bilingual English/Italian parallel corpus of European Union legislation and identify the most frequent translational patterns. The book outlines the principles at the basis of the multilingual policy at the European Union and provides a detailed outline of the context in which the drafting and translation processes take place as a key to understanding the translational choices. The impact of sometimes contrasting factors such as the conventions of legal drafting at the European Union and those within the target culture, the principle of equal authenticity and the attention to the quality and readability of legislative texts is revealed in the analysis. Evidence in support of the theories concerning translation universals is also found and their implications for EU legal translation are discussed. The results lead to the formulation of several hypotheses as regards the norms governing the translation of EU legislative texts. The book also reflects on the impact that the translational choices have on the development of European Union legal language as an independent variety. This volume will be of interest to researchers and students in the fields of Legal Translation Studies and Linguistics, as well as practising translators.

1.
MULTILINGUALISM AT THE EUROPEAN UNION

1.1. INTRODUCTION

One of the main distinguishing factors of the European Union (EU) with respect to other international organisations is that the EU is an autonomous legal system which adopts its own legislation and that this legislation then becomes part of the national law of each Member State (cf. Wagner et al. 2012, 48). As Borchardt (2010, 113) points out, the EU limits the legislative sovereignty of the Member States through a body of autonomous laws which are binding on all EU citizens. The fact that the EU is an autonomous legal order «is the only guarantee that Union law will not be watered down by interaction with national law, and that it will apply uniformly throughout the Union» (Borchardt 2010, 113).

However, the relation between the legal order of the EU and that of the Member States is characterised by interdependency rather than superimposition, especially considering that EU law needs to be incorporated within the legal orders of the Member States for it to be implemented (Borchardt 2010, 113). This interdependency is all the more evident if one considers that not only do EU laws become part of the legal order of the Member States, but also that EU legislation itself originates from the various legal cultures of all the Member States. As Pozzo (2011, 660) observes, the EU legal system is «a legal order in the making», which is «strongly affected by the various different cultural and legal backgrounds» (my translation)¹. Moreover, from a linguistic point of view, «the EU laws are drafted […] in English, but are conceived in German, or in Polish, or in French» (Pozzo 2011, 660; my translation)². The EU can therefore be considered as a supranational entity with a «political and socio-cultural identity in fieri» (Felici 2010, 105) and an «a-national» culture (Koskinen 2000, 57).

1.2. EUROPEAN UNION LEGAL INSTRUMENTS

EU legal instruments are classified into primary and secondary legislation. EU primary legislation consists of the treaties, which can be viewed as the bedrock on which all EU policies are based. The EU website ³ defines a treaty as «a binding agreement between EU member countries» which «sets out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries».

EU secondary legislation is produced by the European Union Institutions and implemented by the Member States. Article 288 of the Treaty on the Functioning of the European Union (TFEU) ⁴ prescribes that:

To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force.

The present work focuses on regulations, directives and decisions, which are the three binding legislative instruments that the European Union can adopt. As stated in the extract above, the difference between these three types of laws lies in the way they are binding. Regulations are binding legislative acts that apply directly to all Member States. Directives are legislative acts that merely set an objective that must be reached by each Member State within a set timeframe. Each country is then free to decide how to implement a certain directive and incorporate it in the national legislation. Decisions, instead, are directly applicable legislative texts but they are binding only for the addressees. Decisions may be addressed not only to Member States, but also institutions, organisations and business companies.

The EU institutions that are directly involved in the law-making process are the European Council, the European Commission, the European Parliament and the Council of the European Union ⁵. The institution that sets the broad objectives of the European Union in all the areas of EU activity is the European Council. It is composed of the Heads of State or Government of the Member States and has regular meetings four times a year in Brussels. The European Commission is the institution that is empowered to initiate legislation. It forwards the legislative proposals to the European Parliament, to the Council of the European Union, as well as to the national parliaments. The Parliament discusses the proposal and can either accept it as it is or make amendments. It then forwards the proposal to the Council of the European Union. The Council can either accept the Parliament’s position, or it can propose changes to the Parliament’s position. In the former case, the legislative act is adopted. In the latter case, the proposed changes are sent back to the Parliament for a second reading. The amended proposal is then sent to the Council. If the Council approves it, the legislative act is adopted, if it does not approve it, a meeting of the Conciliation Committee is convened. The Conciliation Committee proposes a joint text based on the positions of the Parliament and of the Council. If the Conciliation Committee does not come to an agreement on the joint text, the procedure comes an end and the proposed legislative act is rejected. If, on the contrary, a joint text is approved, the text is sent to both the Parliament and the Council for a third reading. If both the Parliament and the Council approve the joint text, the legislative proposal is adopted. If one – or both – rejects it, the procedure is ended and the legislative proposal is failed. Wagner et al. (2012, 14) sum up effectively the roles of the three EU institutions involved in law making as follows: «[i]n a nutshell: the European Council steers policy. The Commission proposes, the Parliament and the Council decide» (emphasis in the original).

There is a distinction between two possible legislative procedures: the ordinary legislative procedure and the special legislative procedure. In the ordinary legislative procedure, both the Parliament and the Council adopt the legislative act, whereas in the special legislative procedure only the Council decides on the act, while the Parliament merely has a consultative and advisory role. The acts that are adopted either by ordinary or by special legislative procedures are called ‘legislative acts’. In certain cases, in accordance with article 290 of the TFEU, the European Parliament and the Council can delegate to the Commission the power to adopt a non-legislative act, which is denominated ‘delegated act’. These acts are functional in amending or supplementing certain parts of a legislative act, providing, for example, additional details or technical information.

Finally, another type of act, the ‘implementing act’, is a legally binding EU act and «require[s] uniform conditions for the implementation»⁶. As the Eur-Lex website reports, while «[r]esponsibility for implementing legally binding EU acts lies primarily with EU countries, […] [i]n these cases, the Commission or, in duly justified specific cases and in cases provided in the Articles 24 and 26 of the Treaty on European Union, the Council is empowered to adopt implementing acts (Article 291 of the TFEU)» ⁷.

1.3. MULTILINGUALISM AT THE EUROPEAN UNION: LEGAL PRINCIPLES

1.3.1. Legal basis of multilingualism

The language regime of the European Union is established by Council Regulation 1/58 and its subsequent amendments. In 1958, Article 1 of this Regulation stated that «[t]he official languages and the working languages of the institutions of the Community shall be Dutch, French, German and Italian», i.e. the languages of the six countries (Belgium, France, Germany, Italy, Luxembourg and the Netherlands) that in 1957 signed the Treaties of Rome, which established the European Coal and Steel Community (ECSC). Regulation 1/58 is amended every time a new State joins the EU, and its latest consolidated version includes 24 official languages ⁸.

The principles at the basis of the choice of integral multilingualism are democracy, transparency in communication, and safeguarding of legal rights and obligations, as can be inferred from the following extract from the EU website:

As a democratic organisation, the EU has to communicate with its citizens in their own language. The same goes for national governments and civil services, businesses and other organisations all over the EU. Europeans have a right to know what is being done in their name. They must also be able to play an active part without having to learn other languages.

The EU institutions pass laws that apply directly to everyone in the EU.

Everybody – individuals, organisations and the courts – must be able to understand them, which means they must be available in all official languages. Using as many national languages as possible makes the EU and its institutions more open and effective. (emphasis in the original) ⁹

Article 4 of Regulation 1/58 states that «Regulations and other documents of general application shall be drafted in the official languages», while Article 5 specifies that «The Official Journal of the European Union shall be published in the official languages». This means that all EU citizens have access to EU legislation and institutions in their own national language ¹⁰.

Interestingly, as Felici (2015, 125) points out, the EU institutions do not provide a clear distinction between ‘official’ and ‘working’ languages. Article 6 of Regulation 1/58, however, gives some further indication by stating that «[t]he institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases», which means that, despite the equal status of all the languages, integral multilingualism is not necessarily applied in every activity carried out by the EU institutions (Venchiarutti 2008, 309). The practical advantage of this is highlighted by Pommer (2012, 1242-1243) who points out that «[d]ue to the great number of official languages, full multilingualism is often impractical in daily negotiations, so a more or less informal regime of working languages, such as the dominance of French at the European Court of Justice (ECJ), is often in place». This does not apply, however, to legislation, where integral multilingualism is always applied so that every law is available in all the official languages.

As stated in the following extract from the Interpreting and Translating for Europe brochure, published in 2010 by the European Commission ¹¹, translation has a fundamental role in achieving the double o...

Table of contents

• Cover
• Title
• Copyright
• CONTENTS
• Dedication
• Preface
• 1. Multilingualism at the European Union
• 2. Drafting and translation of European Union legislation
• 3. Theoretical framework and methodological considerations
• 4. Modality in legal discourse
• 5. Translational patterns for modality in the Euro-CoL corpus
• 6. Concluding remarks
• APPENDICES
• References