European parliament working paper
The general bases for a European language policy
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- 3.3.3. The legitimacy of European action - Language and freedom of movement
3.3. The general bases for a European language policy3.3.1. The Community’s powers of self-organisation. In general, the Union is run on the basis that all its official languages have equal status, that all eleven are at the same time working languages and that the Official Journal is published in each of them. This formal equality has been termed the principle of integral multilingualism, however, in some of the Union’s institutions the number of languages used in everyday business has been curtailed. The Treaty establishing the European Communities makes several references to language and to linguistic (and/or cultural) diversity. The former is three: Articles 21, 290 and 314. Article 314111 lays down that the Treaty has been drawn up in twelve authentic versions: Dutch, French, German, Italian (the original four) and Danish, English, Finnish, Greek, Irish, Portuguese, Spanish and Swedish (as a result of successive enlargements of the Community). The languages mentioned in this article are sometimes termed “Treaty languages”. Secondly, Article 21112 entitles every citizen of the Union to write to the Council, the Commission, the European Parliament, the Court of Justice, the Court of Auditors and the Ombudsman, in one of the languages mentioned above, and to have an answer in the same language. Finally, Article 290113 EC states 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. All these articles refer to the languages used by the institutions. However, we contend that none of these articles justify language promotion actions being limited to these languages. 3.3.2. States’ responsibility for language. Language policy is generally considered to be a State or sub-State competence as no powers have been conferred on the Community in this matter114. Nevertheless, Community action has overlapped with State policies, because a perfect distribution of powers is impossible. In some fields, Union policy has drawn a path of its own, different from that of some Member States. A Council Decision established the Multilingual Information Society programme (MLIS) in 1996115, despite stating that ‘language policies are a matter for the Member States’, for the subject also falls within the Community’s powers because the protection of Europe’s linguistic heritage is at stake. ‘Promoting the development of modern language-processing tools and their use is a field of activity in which Community action is necessary in order to achieve substantial economies of scale and cohesion between the various language areas’, to the extent that it may create added value for the EU and strengthen its economic and social cohesion. Thus, in principle, language policy is “a matter for each Member State” to develop, yet the Union does act in this area. The use of official languages in institutions is legally laid down by each State, just as the Union may establish its own norms for its institutions. But just as States can carry out their own partial policies on language issues, so too may the Community in its sphere. Thus, State legislation on education, for instance, may entail a decision on language, e.g. the choice of the language of instruction; whereas the Community’s contribution to the development of quality education, while fully respecting the responsibility of the Member States in the content of teaching and the organisation of education systems, may entail recommending that as many foreign languages be studied in school, so as to facilitate the future movement of citizens. Again the transversal nature of language issues signals problems about the definition and limits of public action. In this case, the subject matter depends on the distribution of powers between Member States and the Union. Moreover, as the dividing line between State and EU powers is not always clearly defined, those of a Member State and the Union may overlap in a particular field. Nevertheless, the Union aims to attain its objectives, some of which require measures with some linguistic content. Amongst these objectives, the respect for, and the promotion of, linguistic diversity have taken a firm foothold. 3.3.3. The legitimacy of European action - Language and freedom of movementThe Community’s powers in the development of the Common Market (Articles 2, 3 and 94 EC) are beyond question. So too is the fact that the freedom of movement of workers is one of the cornerstones of the Community’s policies (Article 39 EC116). For this reason the removal of obstacles to the liberalisation of the movement of workers was established (Articles 3.1.c and 40). In this field, the existing linguistic diversity in Europe has not been regarded as a legal limitation to the freedom of movement117, but rather as an asset to be respected by the Union118. As a result, the promotion of the learning of European languages has become a measure to facilitate the movement of workers (as the Committee of the Regions has pointed out; see above). The Union thus has to concern itself, from different angles (education, professional training...) with fostering the multilingualism of European citizens. In this context, the Court of Justice has not opposed – on grounds of non-discrimination - the inclusion in job requirements of certain levels of language proficiency (see below, reference to Groener v. Dublin case). The European Social Fund, established in the Treaty (article 146) with the aim of rendering the employment of workers easier and to increase their geographical and occupational mobility within the Community, may be regarded as relevant in this context.119 From this point of view, the Union has some leeway to act validly, in an indirect fashion, in the linguistic field. This is also possible, as we have said, through other specific powers, whether or not the linguistic aspects are explicitly referred to. It is worth recalling once more that linguistic diversity is specifically mentioned in Article 149 EC (whereas Article 151b EC refers strictly to cultural diversity120. A literal reading of the Treaties does not allow a distinction to be made between the Community’s mediate or immediate powers on languages, which have official Community status, and those, which do not have such status. The principles of subsidiarity and supplementarity On top of the aforementioned, reference must be made to two principles, which have a bearing upon State powers: these are the principles of subsidiarity and supplementarity. The former is laid down in Article 5 EC121. Its aim is initially to protect the powers of Members States and its text is as follows: Article 5122 The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. The implications are that the Community needs a legal basis in the Treaties in order to be able to act, and that it will only exercise its powers insofar as such action is appropriate and necessary. This occurs when the objectives of the proposed action cannot be sufficiently achieved by Member States' action in the framework of their national constitutional system and can therefore be better achieved by action on the part of the Community. Such action is possible when the reasons for concluding that a Community objective can be better achieved by the Community have been substantiated by qualitative or, wherever possible, quantitative indicators. As far as language matters are concerned, if States do not act or do so insufficiently; the Community may act to safeguard the general Community objectives. The protection and/or promotion of linguistic diversity appear in several Community actions in which questions of a linguistic nature were at stake. An example appears in recital 14 of the Decision of 24 January 2000 establishing Socrates II123. Powers in the fields of education, culture and the protection of consumers, that often overlap with matters of a linguistic nature, call for the principle of subsidiarity to be applied. The 1994 European Parliament Resolution124 states clearly that the Community should promote the action of Member States wherever the protection of autochthonous regional and minority languages is inadequate or non-existent. It also points out that as these languages are part of the Union’s culture and Europe’s heritage, the Community should offer them legal protection and the necessary financial resources to ensure their protection. The second, the principle of supplementarity, consists of a clause by means of which the Community shall “support and supplement” the action of Member States (it appears, for instance, in Articles 149, 151 and 153 EC). All in all, the principles of subsidiarity and of supplementarity both allow for conditioned actions of the Community, either to better achieve Community objectives by means of a reference to the principle of subsidiarity, or by reinforcing State action, by means of the principle of supplementarity. In this first case State action can be replaced, in the second, it can be completed. Finally, the interpretation of Article 149(1), as regards whether what the Community has to respect is the Member States’ cultural and linguistic diversity (as we hold), or the Member States’ responsibility in the field of their cultural and linguistic diversity (as the Council has taken for granted), depends largely on which version of the Treaties is read125.
of the Commission contradicts the view of the Council, which has interpreted the principle of subsidiarity as follows: ‘following the subsidiarity principle, the common rules concerning the official languages of the Communities do not prevent Member States from taking any kind of measures on a national level to disseminate information on the European institutions in the official languages of their respective territories’, as maintained in the Council’s answer to written question 1682/96127. The Court of Justice has dealt with cases concerning linguistic issues, when the subjective rights protected by treaties of an economic or social nature include linguistic rights128. An interesting case, in which there was a clash between the principle of non-discrimination, the free movement of people, the linguistic regime applicable to penal lawsuits and the promotion of linguistic minorities, was settled by the Judgement of 6 June 2000129. The Court’s decision was based on the principle of equality: Article 39 EC precludes an employer from requiring persons applying to take part in a recruitment competition to provide evidence of their linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State (in this case, South Tyrol, in Italy).
Finally, policies which favour linguistic diversity are usually put into practice by means of European promotion action and not by regulating the languages used by the Community. (The latter refers to decisions regarding the languages of each European institution, an issue tangential to this Report.) We have seen that each of these European actions focuses on a particular field of activity, which is a Community objective in its own right; and includes within it the promotion of linguistic diversity. Such European actions can thus be seen to have a double objective. Community programmes seek to promote projects in various areas: in audio-visual industries, in the media, in education and in business, among others. They often include the objective of promoting the spread or use of a number of European languages (though not necessarily all) in such areas. They are implemented through a special form of administrative intervention: the subsidy. The subsidy policy may at times appear to be independent of the object being promoted. However, the subsidy is linked to a field of action, and needs a specific legal basis for it to be implemented, otherwise the Community’s actions would be illegitimate, as they would not be linked to the policies allowed for in the Treaties. The Court of Justice (in its 12 May 1998 Judgement130 on a subject involving subsidies to support European projects against social exclusion) warned that subsidies require a threefold legal basis: a currently valid budget line must have the appropriate credit; the so-called ‘base act’ which is the legal norm, derived from the treaties, to which the planned subsidy is linked and which allows the commitment (unless it is a non-significant Community action, that is, preparatory actions or pilot schemes); and the precept of the treaties which serves as legal grounds for Community policy131. Thus the subsidy has to be related to a Community competence assigned by the Member States to the Union in the treaties, so any promotion policy must be based on a specific European competence which, since the Treaties establish Community objectives and action lines which are not exactly renown for their clarity, may be more or less explicit. Directory: RegData -> etudes -> document travail document travail -> Working paper a single market in financial services RegData -> European commission brussels, XXX RegData -> The european commission RegData -> Provisional agreement resulting from interinstitutional negotiations Download 1.21 Mb. Share with your friends:
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