Ingemar Strandvik
Quality Manager
Directorate-General for Translation
European Commission
EU Translation — Legal Translation in Multilingual Lawmaking1
Abstract:
This paper aims at highlighting some of the challenges involved in translating legal texts as part
of the multilingual lawmaking process of the European Union. The author posits that it is the
function of the target texts that makes the difference between legal translation as part of
multilingual lawmaking and other types of legal translation. In multilingual lawmaking, the
resulting language versions are the law, not just information about law applicable elsewhere.
Since the different authentic language versions are the law, they must comply with the basic
quality requirements for legislation, such as accessibility, predictability, and non-discrimination.
This, in turn, has consequences for relating to the source text, both as regards terminology and
drafting conventions. The joy and sorrow of the EU translator is found in working to strike the
balance between fidelity to the source text, on the one hand, and the observance of these basic
quality requirements for legislation, on the other. Drafting guidelines and the EN 15038
standard provide useful guidance in this delicate endeavour.
Introduction
When describing the translation that takes place in the EU setting, it is always useful to first
situate the context and have a look at two issues: what the EU is and why the EU translates.
The evolution over fifty years from the European Coal and Steel Community (ECSC) via the
European Economic Community (EEC) and the European Community (EC) to the European Union
(EU) is not just a question of changing acronyms. It reflects a gradual extension of cooperation
to new policy areas and progressive integration through supranational lawmaking. European
cooperation has grown from cooperation in a limited technical area to today’s political union
with a single currency, citizenship and binding supranational legislation in most policy areas.
Today, EU legislation affects most areas of the daily life of 500 million people.
Legal basis for translation
The Member States would never have accepted this evolution without translation. They would
not have accepted binding legislation in a foreign language. Not surprisingly, the first Council
Regulation, adopted in 1958, required that all binding legal acts be drafted in all the official
languages.
Over the years, language rights have been strengthened. There are nowadays Treaty provisions
giving citizens the right to use their official language in all contacts with the EU institutions. The
Charter of Fundamental Rights states that the EU must respect cultural, religious, and linguistic
diversity and upholds every citizen’s right to participate in the democratic life of the Union. This
can only happen if information is available to citizens in their languages (cf. Baaij 2012: 8-11).
Council Regulation 1/58 requires binding legal acts to be ’drafted’ in all official languages. It
does not mention ’translation’, since the language versions are not ‘mere translations’ of
another, authentic original language version. From a legal point of view, although the ‘drafting’
1
The opinions expressed are those of the author only and should not be
considered as representing the European Commission’s official
position.
in practice takes place through translation, all language versions of the legislation have the
same formal status and are equally authentic. This has some important consequences.
Quality requirements for multilingual lawmaking
EU law is a legal order in its own right, with its own drafting standards and conventions.
Consequently, EU legislation should comply with these rules. In other words, it should look and
read like EU law, irrespective of whether the drafting conventions of EU law correspond to the
different drafting conventions of the national legal orders. However, since EU law is
incorporated into national law and becomes applicable law in the Member States, the language
versions are the law, not just information about law applicable elsewhere. This functional
aspect makes the whole difference. Since the language versions are the law, they have to
comply with basic quality requirements that apply to legislation, such as accessibility and
predictability (Schilling 2010: 49; Šarčević 1997: 71). Legislation has to be accessible, not only
physically, but also intellectually: it has to be predictable, that is, clear enough that the
addressees can predict their rights and obligations. This is a matter of legal certainty and
legitimate expectations (Joint Practical Guide: 1.2). Moreover, all citizens should have equal
access to the legislation, regardless of their language, as a matter of non-discrimination and
equal rights.
The Joint Practical Guide
How do we succeed in making texts equally understandable and predictable in all languages?
How do we go about this kind of legal translation? Legal translation is known to give rise to a
rather source-text-oriented translation strategy. Often, when discussing legal translation, you
will hear that ’the texts should say the same thing’. But what does that mean in practice? Does
it mean that the texts should say the same thing at word level? Is it the conveyed meaning that
should be the same? If the legal intent is the same, should the focus not be instead on the legal
effect? Actually, the main quality criteria is that the texts should produce an identical legal
effect in 24 languages so that it is interpreted and applied in an uniform way in 28 different legal
orders (Šarčević 1997: 67-72).
To help us cope with this task, the Legal Services of the Commission, the Council and the
European Parliament have issued drafting guidelines in all languages: The Joint Practical Guide
for persons involved in the drafting of EU legislation (JPG). It contains the following kinds of
instructions.

Texts should be clear, simple and precise (JPG: 1)

In so far as possible, everyday language should be used (JPG: 1.4.1)

Overly complicated sentences, comprising several phrases, subordinate clauses or
parenthesis are to be avoided (JPG: 5.2.2)

Texts peppered with loan words, literal translations or jargon are hard to understand
and the source of much criticism (JPG: 5.4)
A closer look at the Joint Practical Guide shows that almost all its recommendations are
conditional upon the interpretation of words like ’as far as possible’, ‘overly’, ‘excessively’, ‘too’.
Accordingly, how this hedging is interpreted determines what the texts will look like in practice.
Different drafting conventions
Even if everybody agrees that sentences should not be too long, the syntactical structure not
too complex, the level of abstraction not too high, etc., this does not mean that different
languages agree on where to draw the line — simply because languages are different and
drafting conventions differ.
Moreover, different legal systems work according to different logic. This has consequences for
their legal drafting conventions. Where a continental civil law legislator would use the term
’banks’, a common law legislative drafter would rather be likely to talk about ’a bank, banking
corporation or other organisation or association for banking purposes’, to be sure that the term
is not interpreted too narrowly (Bogdan 1993: 49-50). Where an American contract would talk
about ‘any right, interest, title, property, ownership, entitlement, and/or any other claim,’ the
German equivalent would be Rechtsanspruch (legal claim), one word (Smith 1995, cited in Cao
2007: 30).
Obviously, when such issues appear throughout entire texts equal accessibility may suffer, since
even if EU law is the same for everybody, the relationship between EU law and the national
legal orders is not the same. The addressees’ expectations as regards readability and
understandability are determined by national drafting and genre conventions.
Terminology
Terminology is always a major issue in legal translation, where translation takes place between
different legal orders, because there are never one-to-one relations between the conceptual
systems in different legal orders. Legal terminology is always system-specific (De Groot, 2012:
140). This well-known problem for legal translation becomes even more complex in multilingual
lawmaking. The addressees should be able to understand their rights and obligations, since the
translation becomes applicable law and produces legal effects.
In the Joint Practical Guide, it is stated that ’concepts shall be expressed in the same terms as
far as possible without departing from their meaning in ordinary, legal or technical language’
(note again ’as far as possible’). It also establishes that one term should correspond to one
concept. There should not be synonymy and one term should not be used to denote more than
one concept. This instruction is fully in line with well-established international standards for
terminological work, according to which you focus on ’definitions’ and ’concepts’, and not on
the surface level. You do not simply translate the surface level, the terms, without conceptual
analysis (cf. Strandvik 2012: 36-37).
Moreover, in Case 283/81, in the so-called CILFIT ruling, the Court of Justice of the European
Union (CJEU) established what is often referred to as the ’conceptual autonomy of EU
terminology’. It stated that it should always be borne in mind that when a term appears in an
EU legal act, it may have a different meaning from the same term in the national context. The
eternal dilemma of the EU translator is to determine the extent to which this conceptual
autonomy requires terminological autonomy. In other words, when do you need to create new
EU terms and when can you use well-established national terms? The Joint Practical Guide says
that ‘the use of expressions and phrases — in particular, but not exclusively, legal terms — too
specific to the author’s own language or legal system, will increase the risk of translation
problems.’ (JPG: 5.3)
This is a difficult balance to strike since formally all terms in an EU legal act are EU legal terms.
In practice, however, it may be useful to make a distinction between ‘pure’ legal concepts
related to EU law and the standard language for special purposes (LSP) of the subject field being
regulated. If all terminology is re-created at EU level, the national experts, those who have to
apply the law, may systematically have to learn parallel terminology. This is hardly the idea,
since the very purpose of terminology is to facilitate expert communication.
Another dimension that adds complexity to term handling is that corrigenda are always
problematic, from a legal point of view. Each corrigendum risks creating legal uncertainty. The
requirements for accepting corrigenda requests are therefore strict. From a formal legal point of
view, a term is correct once it appears in an adopted legal act, even if all subject field experts
agree that it is not the ideal term. A term has to be seriously wrong or misleading to qualify for a
corrigendum (cf. Strandvik 2012: 38-39).
Considering the level of technical detail in today’s legislation, terminological work requires
constant efforts and contacts with experts to strike the right balance.
Other drafting guidelines
As a consequence of the gradual extension of European cooperation, the European Commission
now produces a number of different text types: not only legislation, but all sorts of other
documents ranging from policy documents such as communications and green papers to press
releases, brochures and web text. To assist drafters, there are a number of text-type-specific
drafting instructions: for legislation (the Joint Practical Guide discussed above), for press
releases, for web texts, for general administrative drafting (the booklet How to write clearly)
and not least the recent guideline on drafting statements of objections in competition law, a
guideline that was awarded this year’s Clear Writing Award, the Essential guide to drafting
Commission documents on EU competition law. These different guidelines are important since
they clarify what the institution wants to achieve with different types of text and how the
drafting can contribute.
The role of translation in institutional multilingualism
In practice, in 23 out of the 24 official languages the ‘drafters’ are the translators. Therefore,
these drafting guidelines are as relevant for translators as they are for the drafters of the source
texts. Since editing can naturally take place through translation (Mossop 2007: 161; Strandvik
2012: 47), the guidelines give a reliable idea of the extent to which such editing can be safely
carried out while translating. Apart from the institutional drafting guidelines, language
departments issue language-specific style guides to ensure that target-language drafting
conventions are followed as far as possible.
The translators are the institutional voice in all languages. To avoid undermining the EU’s
political objective of bridging the gap with citizens and making people engage in the European
project and participate more actively in the political processes, the texts should all work as
originals as far as possible. The challenge of the EU translator is to strike this balance, bearing in
mind that we do of course need to relate to the source text, since we do not draft the language
versions directly but through translation.
Fidelity
To fulfil the legal and political quality requirements discussed above, all language versions need
to be suitable for their communicative purposes. They must therefore deviate as little as
possible from the target cultures’ drafting conventions for the text type concerned. As we have
seen in the Joint Practical Guide, the legal services of the European Parliament, the European
Commission and the Council consider that this is also an issue for multilingual lawmaking.
This takes us to the issue of fidelity. We should of course be faithful, but to what and to whom?
Should we be faithful to the authors, who may not draft in their mother tongue, who may not
be aware of the institution’s guidelines for drafting and who may be working under extreme
time pressure? Should we be faithful to the text drafted under such conditions? Should we
rather be faithful to the institution, ensuring that the institution’s guidelines are applied and its
communicative purposes adhered to? Or should we be faithful to the end users of the text,
focusing on applying the drafting conventions of the target languages? Obviously, the reply
should be a mix of these considerations, a mix that may need to vary depending on the
situation, the language and its drafting conventions and the text type concerned. Adhering to a
strict literal approach to translation is not likely to be enough to help the Commission achieve
its political objectives and may not be enough to produce texts that comply with the quality
requirements for legislation.
The joy and sorrow of the EU translator is continuously to be confronted with the dilemma of
striking the right balance when searching for all these ‘as-far-as-possibles’. Existing institutional
drafting guidelines are a great help, since they express what the institution wants to achieve.
Moreover, the principles of the professional standard EN 15038:2006 provide valuable
guidance. On the one hand, clarifying the role of the communicative purpose and text type
conventions for the choices the translators make. On the other, hinting at the usefulness of
translation briefs in clarifying this purpose and of a project-management approach to
integrating the translators into the workflow, which is one of the criteria Šarčević raises for
reliable multilingual lawmaking (1997: 109; 2012: 102-103).
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