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English as official European language does not have any legal basis. ERA in a Legal Letter asks Commission for explanations

English as official European language does not have any legal basis. ERA in a Legal Letter asks Commission for explanations

To Madam President of the European Commission Ursula von der Leyen
Through Madam Secretary General Ilze Juhansone
Rue de la Loi, 200 Bruxelles

Bruxelles, 2 March 2021

Madam President, Madam Secretary General, we send this letter in the name and on behalf of ERA-Onlus, a non-governmental organisation, accredited by the European Union Agency for Fundamental Rights and by the Economic and Social Committee of the United Nations, which has been active for many years in the sector of human rights and in particular in the protection and safeguarding of the cultural heritage represented by national languages.

           We believe that multilingualism represents one of the founding values of the European Union. As stated in the Council Resolution of 21 November 2008, «linguistic and cultural diversity [is] an intrinsic part of European identity and (…) at the same time a shared heritage, a wealth, a challenge and a resource for Europe (…) multilingualism represents a transversal issue of great importance as it embraces the social, cultural, economic and therefore educational sectors». This concept is deeply anchored to the democratic roots of a Europe of citizens in which everyone must be able to understand and interpret the legislative provisions issued by the Union as they constitute the national law of each Member Country.

This structure finds its normative consecration in Article 55 of the TEU, which – in establishing the authentic and official languages of the European Union – recalls the need for a determination by the State concerned in order to identify them.

Article 1 of Regulation no. 1 of 1958, moreover, as resulting from the changes last made on 1.7.2013, establishes that:

«The official languages and working languages of the institutions of the Union are the Bulgarian language, the Czech language, the Croatian language, the Danish language, the Estonian language, the Finnish language, the French language, the Greek language, the English language, the Irish language, the Italian language, the Latvian language, the Lithuanian language, the Maltese language, the Dutch language, the Polish language, the Portuguese language, the Romanian language, the Slovak language, the Slovenian language, the Spanish language, the Swedish language, the German language and the Hungarian language». This provision, in addition to identifying the working languages with the official ones, thus disavowing the inveterate trilingual practice of the informal meetings, establishes the perfect equality of all the languages of the countries belonging to the Union without giving any of them a privileged status.

It is the individual Member States, at the time of their respective accession to the Union, that establish not only their authentic language, but also their official one: the inclusion of the latter takes place, in fact, only following the modification of the aforementioned Regulation no. 1/1958. By representing the result of two legally and functionally distinct choices, the authentic and the official languages are not necessarily superimposable. Emblematic is the case of the Republic of Ireland, whose language, Gaelic, became an authentic language of the Treaties at the time of accession, that is to say from 1973, but became part of the list of official languages only in 2005, at the explicit request of the Irish Government.

From the foregoing, it is unequivocal, on the one hand, that only the languages of the Member States of the Union can rise to the rank of official languages and, on the other hand, that the determination of these languages does not take place on the basis of an automatic reference to the internal constitutional provisions by the Union’s law, but it is the result of a choice to that effect made by the Member State in question and made through the modification of Regulation no. 1/1958.

It is for this reason that we are witnessing, not without concern, the linguistic policy determinations adopted by the institutions of the Union following the outcome of the United Kingdom’s withdrawal and fundamentally entrenched in the superficial statement contained in the official website of the European Commission (https://europa.eu/european-union/about-eu/eu-languages_en), according to which «Even after the withdrawal of the United Kingdom from the EU, English remains one of the official languages of Ireland and Malta.» and on the official website of the European Parliament (https://www.europarl.europa.eu/news/en/faq/21/which-languages-are-in-use-in-the-parliament), where we read that “The departure of the United Kingdom from the EU has not as such resulted in the abolition of English as an official language.”

And indeed, the withdrawal of the United Kingdom from the Union has led, among other consequences, to the necessary departure of the English language from the list of official languages of the Union since no other Member State, with the exception of the United Kingdom, has indicated English as its official language at the time of or subsequent to its accession.

This has not been done by the Republic of Ireland, as mentioned above, nor by the Republic of Malta since the Maltese language was recognised – at the end of the negotiations for accession to the Union – not only as its authentic language but also as its official language, through the necessary amendment of Regulation no. 1/1958.

On the other hand, the necessary correspondence between the status as a Member Country of the Union and the use of its respective language as an official language, led to the automatic exclusion of the English language without the need for any explicit regulatory determination, given – as above said- the democratic and cultural value of the European multilingualism, which implies the identity between the languages of the citizens of the Union only and the official languages of the institutions.

To those ends, it is not relevant that English is considered an official language in the national law of the Republic of Ireland (Article 8 of the Constitution) and of the Republic of Malta (Articles 5 and 74 of the Constitution).

These provisions, in fact, sanction a multilingualism at national level, moreover establishing, in both cases, a clear primacy, respectively, of Gaelic and Maltese over the English language. However, such multilingualism on the internal constitutional level, does not, in itself, produce any effect on the level of the Union’s law in the absence of an explicit and univocal expression of will by the Member State, to be made – as said several times – at the time of accession.

On the other hand, the reading of article 8 of Regulation no. 1/1958 does not provide univocal arguments to exclude that a Member State can «determine» the use of more than one language if this complies with the legislation of the State concerned. However, it represents an indisputable fact that – at least at the present time – no Member State of the Union has availed itself of this possibility though recognising in its internal system the existence of linguistic minorities.

But above all, a circumstance that is of greatest interest for the purposes of these considerations, neither the Republic of Ireland nor the Republic of Malta – contrary to what is surreptitiously indicated by the Commission in the official pages of its website – have availed themselves of the possibility offered by the Regulation n. 1/1958, to determine English as their official language alongside the ones – respectively Gaelic and Maltese – indicated as their main ones under their national Constitutions.

The stance adopted by the European Commission, therefore, as well as lacking any legal basis is in open and patent contrast with the prerogatives that the Treaty assigns to the Council of the Union. Indeed, Article 342 TFEU stipulates that «The linguistic regime of the institutions of the Union is established, without prejudice to the provisions of the Statute of the Court of Justice of the European Union, by the Council, which decides unanimously through regulations

Thus, while the suppression of the English language from the list of the official and working languages (in view of their equalisation in this sense made by Article 1 of Regulation No. 1/1958) is an automatic and immediate consequence of the United Kingdom’s exit from the Union, its permanence should have been – instead – the result of a decision (rectius: a regulation) by the Council of the Union adopted, moreover, after the determination – by at least one other Member State – of the English language as its (second) official language under its internal legislation.

At present, therefore, the persistence of the English language among the official languages of the Union in the absence of a solid judicial basis, represents the Achilles Heel of the democratic roots of the Union: how could, in fact, be justified that – for example – a European citizen is selected at the outcome of a competition procedure in which – as it frequently happens in the notices published by the Institutions and Agencies of the Union – is it compulsory to carry out tests in English? What could be the basis for the use of a language that, for all legal purposes, must be considered extra-European?

In addition, it should not be overlooked that this preponderance in the use of the English language would entail economic consequences of no little moment – to be borne by non-English-speaking countries – following the need to invest financial and human resources to learn this language. Nor, on the other hand, could the maintenance of the English language in the list of the official languages be justified, without a legally valid prior decision adopted by the competent institutions, based on factual considerations related to the numerical consistency of the European citizens for whom English is an official language, albeit a secondary one. Even if we want to follow the stance of the European Commission, as a matter of fact, the population of the Republic of Ireland and that of the Republic of Malta, added together, barely reach 5 million inhabitants, compared to about 450 million European citizens..

It is evident that this would lead to the transformation of the regime of multilingualism – a value through which the deeply democratic nature of the Union is substantiated – into a mere functional multilingualism, just like other international organisations, such as, for example, the United Nations, thus denying the very deeper nature of the European Union itself.

The language represents, in fact, an absolutely essential factor in the identity and self-determination processes, even more so in the context of supranational organisations such as the European Union, where it acts as a valuable indicator of its egalitarian and non-discriminatory roots. The persistence of the use of the English language when it is not the official language of any Member State (nor their first language under their national constitutional systems), would therefore be symptomatic of a profound identity crisis of the Union, as well as potentially the bearer of divisions and inequalities among the citizens.

Trusting that these considerations have aroused your interest, we would be interested in knowing your considerations on the legal basis relating to the use of the English language as official language of the Union even after the exit of the United Kingdom, specifying that this letter is not intended as a prodromal warning to a possible action for failure to act.

While remaining available for a possible meeting in order to represent in a more precise and detailed way our position as well as the activities of the Organisation, we are pleased to offer our deferential regards.

Michela Velardo Lawyer

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