TRANSLATING JUSTICE: THE ECJ PERSPECTIVE
Thank you for your welcoming words. I am truly grateful for the honour of addressing
such a qualified and competent audience today. I would also like to thank the organisers
for having given me this opportunity.
With my presence here, I aim to explain how the Court of Justice sees legal translation.
First of all, allow me to highlight very briefly what is the role of the ECJ. There are three
main functions of the ECJ within the EU institutional set-up. These are:
1. reviewing the legality of the acts of the institutions of the European Union;
2. ensuring that the Member States comply with their obligations under the Treaties;
and
3. interpreting EU law at the request of national courts (the preliminary rulings).
This is the role entrusted to the ECJ by the treaties. It is however the landmark decisions
of the ECJ that have carved out its role during these last 60 years. The legal principles
established, sometimes not without controversy, have put the ECJ in the forefront of the
construction of the EU as we know it today. Most of these decisions arose from requests
for preliminary rulings from national courts. This procedure could, as I will mention later,
provide the tools to solve a number of problems.
The ECJ is today the supreme court of the Union, with regard to EU law. Its competences
include actions in areas such as competition, human rights, administrative, and
constitutional law.
The ECJ does not have criminal jurisdiction. Its decisions, however, do have a bearing on
criminal proceedings before national courts, particularly where human rights are
involved.
I became head of the Maltese translation unit at the Court of Justice ten years ago. All
this time, translation has been my foremost priority. But even my earlier professional
experiences, first as a practicing solicitor, and later as a diplomat, made me appreciate
the vital importance of proper communication. Correct communication becomes more
relevant in a legal context, where individual rights are at stake.
Multilingualism and its implementation. In an increasingly multilingual environment,
the importance of legal translation in judicial proceedings is increasing. In these changing
circumstances, the role and responsibilities of a court remain the same, whatever the
nature of the case.
One of the most important functions of any court is its communication. It does so in two
ways. It communicates internally, through the various functional units of the court. It
also communicates externally. It does so with the parties to a case and with the public,
through its decisions and their related documents. A breakdown in communication
inevitably leads to a breakdown in the delivery of justice.
Communication requires clarity. The Court of Justice, differently from any national court,
operates with personnel and judges from 28 Member States. It communicates internally
using French as its language of deliberation, and externally with 24 official languages. It
is this linguistic peculiarity that makes its communicative function particularly difficult.
Since the creation of the ECJ in 1952, this situation has become more complex with each
enlargement, and the addition of new official languages.
Today, the ECJ translates over a million pages annually. This situation has always created,
within the Court, an acute awareness of the importance of correct communication. This
is reflected in the size of the Directorate General for translation, which accounts for
approximately half the total personnel of the whole institution. The DG is divided in 24
language units, one for each official language. In this manner, court judgments, which are
drafted in French, are translated in all languages.
All incoming documents are translated into French, which is the common working
language. Each case before the ECJ, therefore, has all of its documents both in French, for
internal communication, and the language of the case, which is determined according to
its rules of procedure. It is quite a complex mechanism, but is absolutely necessary to
allow the Court to function and communicate, both internally, and also externally. This is
how the ECJ can function and implement the principle of multilingualism.
The institutions’ obligation to implement multilingualism, viewed from a different
perspective, is also a fundamental human right. This includes the right to a fair trial, the
right to equal access to justice, and, more specifically the right of accused persons to free
translation and interpretation facilities. These are enshrined in the European Convention
of Human Rights, the Charter of Fundamental Rights of the EU, and, with regard to
translation and interpretation, Directive 2010/64.
The Directive gives rights to EU citizens. Member States are by now supposed to have
implemented it. Leaving aside the issue of implementation, I perceive a certain lack of
enthusiasm by some Member States. I do not therefore exclude the possibility of actions
being brought before the ECJ on this issue. Were this to be the case, it would be
interesting to see not only what interpretation would be given of the Directive itself, but
possibly also of the role of legal translation in judicial proceedings.
The Court of Justice understands “quality” to mean the highest possible degree of
excellence. Legal translation needs to convey the message of the original text. One must
therefore use correct terminology, meaning, grammar, style. The translator must use all
his experience and abilities to achieve this. This ensures that a person involved in judicial
proceedings, including criminal proceedings, is treated fairly.
To achieve this, quality is to be applied to all the work practices relating to the translation
process. It is applied not only to the translation exercise itself, but also to the selection of
translators, their initial and ongoing training, as well as the subsequent “quality control”
processes. The lawyer linguists’ personal work planning, as well as their attitude and
preparation are also important. High quality in all aspects of one’s work is therefore our
aim, including high ethical standards.
The documents translated by the ECJ are judgments, opinions and orders of the Court,
but also procedural documents, which are a specific part of the judicial proceedings.
These are therefore all documents that carry legal effects.
Legal translation should transpose all the characteristics of a legal document in the target
language, namely: precision, consistency, simplicity, uniformity, correct terminology,
clarity, etc. To do this, linguistic competence is not sufficient. Profound knowledge of the
law is also necessary.
The translator of the ECJ must possess expertise in law, be proficient in a number of
languages, and be able to draft legal texts in his own native language. This dual
competence is the basis of the name of the translator at the ECJ: the lawyer linguist. Thus
only qualified legal professionals who satisfy this dual competence are admitted to the
post of lawyer linguist with the ECJ.
Legal translation at the ECJ is not just a translation exercise. It is understood to be, first of
all, part of the judicial process itself. It is also an exercise in comparative law. The lawyer
linguist is expected to critically analyse court documents from a legal and linguistic
aspect, before transcribing them in another language. He is also expected to point out
any substantial or formal flaws in the original text to its author. Recruitment therefore
reflects these requisites, even with regard to freelance translators with the ECJ.
Candidates for this post are examined for a number of other competences, along the
lines indicated by the European Masters in Translation Expert Group. They must possess
interpersonal skills, language competence, intercultural competence, the ability to
research one’s sources, the legal expertise, as well as the ability to use one’s tools,
besides all the other professional and ethical competences.
Only persons with a full university course in law, who have an excellent knowledge of 2 or
more official EU languages, besides a perfect knowledge of their native language can be
considered. Because of the traditional role of French at the Court of Justice, knowledge
of this language is a must.
Selected candidates then go through a probationary period, devoted to in-house training
and translation work under a dedicated tutor. Translations are revised by an experienced
official, who thus guides the newly arrived colleague through the practical difficulties and
problems of legal translation, besides other issues such as settling in, work flows, and
working methods.
Tutorship is supplemented by intensive presentation courses on the role and workings of
the Court, the tools, basic translation principles, as well as familiarisation with practical
translation issues. The training received is then put in practice with the actual translation
work.
If the lawyer linguist achieves the minimum standard within his probationary period, he
becomes a fully-fledged EU official. But a lawyer linguist is expected to continue
furthering his professional development throughout his career. He must keep abreast of
developments in the linguistic, translation and legal fields. This progress is evaluated each
year.
Translation involves three main phases: translation, revision and proofreading. Before
this is undertaken, a special unit identifies those parts of the text already translated
before, or which are similar to previous documents, such as standard phrases, quotes
from legislation, or case-law. This research is then made available to the lawyer linguist.
The actual translation involves three main stages: 1) reading and analysis of the original
text, in order to get to know the document, its subject, and identify potential difficulties,
2) research into the main terminological issues, and identification of sources, 3) actual
translation of the text, using the research and sources identified.
The next step is the revision process. Through this phase, undertaken by a different
lawyer linguist, one verifies if the translation procedure has been followed, according to
the internal guidelines. The revision process also aims to ensure legal and conceptual
coherence with the original text and with other related documents of the Court.
Finally, the proofreading process, undertaken by a different person, ensures not only the
formal coherence of the document with the original, but also the linguistic correctness of
the translated document. The revision and proofreading processes are the quality control
part of the translation phase.
There are other processes which indirectly form part of quality control. One such
example is the manner with which terminological uniformity is maintained. This is
ensured by using terminology databases in all official languages. Automatic translation of
standard phrases is also used, though this is not to be confused with machine translation.
Furthermore, seminars, meetings and conferences are regularly held, in which the lawyer
linguists or specialised guest speakers tackle particular legal topics for those involved in
their translation.
In order to maintain the highest level of coherence with the translated documents of
other EU institutions, the Court of Justice also participates in a number of interinstitutional working groups, dealing with subjects such as training, human resources,
translation techniques, and terminology.
With regard to terminology, the ECJ is currently embarking on the VJM, or the
Vocabulaire Juridique Multilangue. This project aims to bring together definitions of
legal concepts from all the EU legal systems, and give them a rendering in all the official
languages. In this way, translation of these concepts remains standardised and
consistent.
This project is particularly relevant to us today, as the information collated to date is
publicly accessible through IATE. At the moment, the ECJ has collated terminology in two
areas: the law relating to foreigners and family law. The ECJ is currently working on a
similar database with regard to concepts from the criminal law domain. It should be
available, also through IATE, in the future. This, I believe, is one avenue of cooperation
which should be of particular interest to all translators of legal documents.
What lies ahead for us in the future? Well, we have seen all sorts of crises over these last
five years. Budgets have been cut, and resources have been reduced as a result. This
makes national governments even less willing to spend, and therefore implement new
obligations and reforms. Even for the Court of Justice, this has meant paying a price. We
at the court have had to work more with less.
Our challenge today is that of maintaining the delicate balance between high standards
and increased pressure of work, due to the huge increase in court cases being brought
before the ECJ. We have had to apply certain measures to ensure this, such as selective
translation, reduction of the number of pages of court documents, and recourse to
automated translation in case of repeated phrases. The ECJ always looks to keep itself
abreast of developments and trends in translation issues, techniques, tools, and
translation software, in order to improve its productivity.
Keeping in mind the Directive`s requisites, and the recommendations laid out by the EMT
Expert group, I can conclude that the Court of Justice fares quite well in respecting the
standards set out.
Allow me to conclude with some personal considerations. For me as a European, brought
up in a society where the rule of law is supreme, and living in the land of free and civilised
thought, it seems to me a sad state of affairs to think that we still have to be discussing
this issue today. As far back as 1985, ECJ case law had already stated that the protection
of the linguistic rights and privileges of individuals is of particular importance.
The ECJ has also consistently stated that although criminal legislation and the rules of
criminal procedure are matters for which the Member States are responsible, Community
law sets certain limits to their power in that respect. It would appear that the rule of law
and political needs do not always see eye to eye. As in many other cases, therefore,
rights will have to be fought for by those organisations and individuals who will need
them.
The Commission will undoubtedly ensure proper implementation of the Directive, but
what about individual right of action? I believe that personal initiative is fundamental if
we want this system to work. In my view, this Directive could effectively benefit from the
Direct Effect Principle as established in Van Gend and Loos, and further defined in the
Becker and Francovich cases.
This means that an aggrieved person could invoke this Directive directly before a national
court, if he feels that his rights are not properly reflected in national law. Alternatively, he
could, if its interpretation is in doubt, request the national court to make a reference for
a preliminary decision to the ECJ in this sense. We can thus see, as mentioned earlier,
that there are possible alternative actions that can be undertaken by individuals to solve
obstacles posed by Member States’ lack of action.
After all, translation is all about communication. Nothing could be simpler than persons
talking and understanding each other. And yet, whilst many think it’s easy, it’s not.
Communication, as is translation, is a very delicate process. Even communication
between persons using one language can break down, let alone translation. Many people
think they know how to communicate, or translate, properly, when in effect many times
their message is lost in translation.
Whilst communication is difficult in normal situations, it becomes impossible when trying
to communicate with people who do not want to do so.
These two scenarios, I believe, are the main challenges for everyone in the legal
translation profession today: 1) ensuring quality in one’s work, and 2) convincing national
authorities to act in the true spirit of the Directive.
I believe the tools to convince national authorities are available. The message should be
clear:
When legal translations are of the required high quality, justice can be delivered.