By William Robinson, Associate Research Fellow, Institute of Advanced Legal Studies, London
Is it possible that the language of the EU may be – at least partly – to blame for Brexit?
The main factors, such as concerns about migration, loss of sovereignty and the British payments to the EU budget, have been broadly canvassed but it is also worth considering whether a contributory factor was some of the language used by the EU, starting with the EU treaties themselves.
No-one would suggest that many British voters read the EU treaties from cover to cover before casting their vote. Indeed the former Irish Commissioner Charlie MacCreevy said he did not expect “any sane, sensible person” to read the Lisbon Treaty.
But it is quite likely in this age of direct internet access to sources that some of those voters found their curiosity piqued by the frequent references in the debates to the phrase “ever closer union” in the EU treaties. If they did use their search engine to find that phrase they would have discovered that it appears in the preamble to the Treaty on European Union.
That preamble begins with a list of six assorted presidents, three queens, two kings and a grand-duke (a footnote explains the absence of the heads of state of the other 16 Member States) and goes on:
- Resolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities,
- Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law,
- Recalling the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe […]
Some readers might already be put off but if they persevere through the fine phrases (two “confirmings”, two “desirings”, one “determined” and five more “resolveds”) they would eventually reach the bit they were looking for:
- Resolved to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity.
So they have indeed found the words they were looking for but they have also found references to decisions being taken “as closely as possible to” them and to the “principle of subsidiarity”. They might well wonder what English that is. The United Kingdom does not have a written constitution and so we are not used to such fine phrases.
Some British newspapers have long mocked the language of the EU with names such as “Eurospeak”, “Eurlish” or “Eurojargon”. Of course, some of that mockery is little more than linguistic jingoism, as when Michael Gove derides the EU institutions for each having a president. Isn’t it actually more logical and consistent to call the head of each institution the “president” rather than to refer to the Prime Minister, the Speaker of the House of Commons, the Governor of the Bank of England and so on? There are certainly problems with the language of the EU but it merits more serious consideration.
After all, the EU is not a physical entity like a country but a legal construct in which the EU treaties signed by the Member States create the basic skeleton and the flesh is put on those bones by laws adopted by the EU institutions. Of course all those treaties and all those laws are expressed in language. So any problems with the language of the EU go right to the heart of the European project.
The laws which the EU institutions adopt in accordance with the treaties include regulations which apply directly in each Member State and directives which have to be converted into national law. Those laws and the language in which they are expressed have a marked impact on the national legal systems.
One problem is that those negotiating the EU treaties and laws sometimes seek to hedge provisions round with conditions, qualifications and cross references, as in the following example:
“Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions.” (Article 14 of the Treaty on the Functioning of the European Union)
Another problem stems from the fact that the EU is a novel system. The treaties therefore sometimes needs to use complicated technical terminology or give new unfamiliar meanings to familiar terms as in the following examples:
“exclusive competence and shared competence, the principles of subsidiarity and proportionality and the principle of conferral, the configurations of the Council, enhanced cooperation and complementarity.”
The EU treaties also refer to the un-English sounding “acquis” that – rather ominously – “has to be accepted by candidate states for accession to the Union” (all that means is that any country wishing to join must agree to some 150,000 pages of the EU’s legislation and the case-law of the European Court of Justice).
Similar problems are to be found in the language of the laws adopted by the EU institutions, the regulations that are “directly applicable” and the directives that have to be “transposed” and “implemented”. The adoption process itself may involve “trilogues” or “Comitology”. Each law is preceded by a preamble with “citations” and “recitals” that are often many pages long and then the actual provisions are divided into “articles” and “paragraphs”. They are often amended and then they have to be “consolidated” and perhaps “codified” or “recast”.
Many of those terms are unfamiliar to Irish or British ears, if not downright alien, but use of such technical language is defensible. The EU is a new system (a “new legal order” in the EU’s own terminology) grafted on to the legal systems of its members. Because of that novelty and the fact that some elements are quite different from the national systems specific terminology may well be needed for elements of that system.
To understand the particular nature of the English used in the EU we need to look back to its origins. When the forerunners of the EU, the European Communities, were established in the 1950s, English was not one of the official languages. It was only in 1973 that Ireland and the United Kingdom joined and all the treaties and the laws had to be translated into English. Those first translators did an excellent job but they had to produce English texts that precisely reflected what had been created and worked out in other languages, generally French.
All translators know that there is a lot of truth in the French saying – dating back to an earlier, decidedly sexist age: “A translation is like a woman. If she is beautiful she is not faithful. If she is faithful she is not beautiful”. It should be no surprise – and certainly no reflection on the abilities of the translators – that some of those faithful translations were less than beautiful in English.
There is also an Italian saying “traduttore traditore”, literally meaning “translator traitor”. I used to think that it meant that the translator had to betray the original in order to produce a version in the target language but perhaps it also suggests that the translator has to betray the target language in order to reflect the source language.
In early days French was the predominant language of the European Communities for France had played a leading role in setting them up and French was then the language of diplomacy. But after 1973 some of the staff of the EU institutions started to communicate with each other in English and over time an increasing proportion of EU laws came to be drawn up in English. In the early 2000s English overtook French as the main drafting language and for a decade or so now almost all laws have been drafted in English.
The fact that laws are now drafted in English rather than being drafted in French and then translated has not led to such a fundamental change in the English versions as an outsider might have expected. There are various reasons for this.
First, all the new texts that are adopted have to remain consistent with the treaties and existing laws. The early translations have a strong influence over what is now written as the English originals.
Secondly, most of those doing the drafting are not native speakers of English. The staff of the EU institutions are drawn from all 28 EU Member States and the proportion of Irish and British staff is as low as 5% (even before the impact of Brexit is felt).
Thirdly, the 24 languages of the Member States are recognised as “official and working languages” of the EU institutions and EU laws are authentic in those 24 languages. To make sure a text can work in all 24 it is sometimes necessary to formulate the draft in a way that is not the most simple or natural in English.
So there are technical explanations for the English texts being difficult to understand.
Unfortunately, while the EU treaties stipulate that the EU is to “respect its rich cultural and linguistic diversity” and refer repeatedly to openness and transparency, they make no express reference to clear language and understandable laws or communication.
In 2001 Peter Hain, the UK Minister for Europe, quoted a passage from the EU treaties which he described as “Vintage euro-babble”. But he went on to say:
“the language is bad for a good reason. The treaties are complicated not because the bureaucrats were allowed to run wild, not because the lawyers were left in the room on their own, and not because the translators couldn’t cope. They are complicated because democratically elected governments wrote them and because we and every other member of the EU brokered them, and agreed them by unanimity. They are complicated because what they contain is language deliberately designed to satisfy everyone; to protect everyone’s interest.”
In a leaflet aiming to explain the EU treaties in concise, understandable language produced for the Foreign Office the same year, he wrote:
“Eurospeak is impenetrable. As Minister for Europe, I make a point of telling it like it is on Europe, in plain English. This is my attempt to break through the Eurobabble.
There are several European Union treaties. They run to hundreds of pages and millions of words. To most people they are completely unreadable. But beneath the complicated structure of the treaties, beneath the single sentences and sub-clauses that can go on for a page or more, beneath the strange vocabulary, there are a few very simple and very good principles.”
The leaflet explained those principles in some 300 words grouped in 14 bullet points.
We can all surely accept that some of the complexity in the EU treaties and laws is necessary because of the need to fix precisely what the Member States agree as the policies and rules applying to them all. But how much linguistic latitude should the EU institutions be allowed?
Some of the problems are fairly trivial. For example, can the EU institutions simply override linguistic conventions in English? Can they really tell us that £1,000.50 is to be written GBP1 000,50? Or that we must write “five euro and five cent” rather than “five euros and five cents”?
At what point does something that appears almost laughable become an abuse of language? Is it really English to justify certain agricultural payments year after year with the words:
“The seasonal nature of the production of certain long-keeping cheeses and Pecorino Romano, Kefalotyri and Kasseri cheese is aggravated by the fact that the seasonality of consumption is the inverse of the seasonality of production. The fragmented production of such cheeses further aggravates the consequences of that seasonality. Therefore, provision should be made for recourse to seasonal storage in respect of a quantity corresponding to the difference between summer and winter production.”
And can the EU institutions repeatedly adopt laws referring to “cereals exported in the form of whiskey”? 🙂
Language is flexible, none more so than English. But if it is stretched or bent too far it may sometimes snap.
The language used by the EU may pose particular problems to its English-speaking citizens.
For one thing English speakers have a long tradition of mocking anyone who uses mealy-mouthed or bombastic language ranging from Swift, Cobbett, Orwell and Gowers to the plain-language movement of today.
Another factor is that now that the EU drafts in English all the other 23 language versions are translations. They are produced by the institutions’ translators, who are native speakers of the language concerned and skilled linguists well versed in the art of adapting the message for their audience.
It is only the English speakers who are getting the raw version of the EU’s message, the message without any reworking by native speakers. The EU institutions do have mechanisms and highly skilled staff to improve the language they use: translators and interpreters, editors and lawyer-linguists. But too often those staff find their hands are tied by the technocrats, the politicians and the diplomats who insist on their convoluted phrasing, their fudges and their deliberate ambiguities. If the EU institutions were serious about improving their communications they should be reinforcing those mechanisms and putting those skilled linguists at the heart of the process.
The issue is not just about external communication and the presentation and the public perception of the EU. If the language in use in the EU institutions is poor, internal communications suffer and the decision-making process becomes woolly and confused. The resulting Treaties and laws will inevitably leave scope for divergent interpretations leading to a long period of uncertainty until the courts have given a ruling.
It is possible that the technocrats working for the EU are not fully aware of the extent of the problem. They may not realise that the language they use forms a barrier to any citizen who wants to know what is going on.
It would be more serious if the technocrats were consciously deciding that it was not necessary to make the work of the EU accessible to its citizens.
It would be far worse if the technocrats were deliberately seeking to keep the EU citizens from understanding what the EU is doing in order to prevent them from meddling, as was suggested by leading statesmen such as Giuliano Amato, Valerie Giscard d’Estaing and Karel de Gucht when they said that the Lisbon Treaty was deliberately made unreadable.
Is the issue just a matter of language or is it something more fundamental, such as the technocrats’ refusal to engage with citizens or even to allow inconvenient facts to get in their way?
For example, in 1961 and 1962 when the Member States were unable to conclude vital negotiations on voting procedures by the fixed deadline of 31 December 1961 the “clock was stopped” for a fortnight to allow the negotiations to be wound up.
Another instance was given by Pierre Pescatore, a Luxembourg civil servant involved in the preparation of the treaties establishing the European Communities in 1957. He went on to become a long-serving a judge at the Court of Justice of the EU and he explained in a 2003 interview¹ that on 25 March 1957, the date fixed for the ceremonial signing of the treaties, the staff had not been able to have all the texts ready in time. So they prepared dummy texts with just the first and last pages printed and the other pages blank. And it was those dummies that were signed by the heads of state that day.
It is not just Donald Trump’s team who work with “alternative facts”.
¹ Interview with Pierre Pescatore: the signing of the Rome Treaties (Luxembourg, 10 September 2003)
Disclaimer: The opinions expressed in this article are the author’s own and do not reflect the views of the Legal Translation Hub.