Do You Hear What I Hear? Translation, Expansion, and Crisis in the European Court of Justice
Do You Hear What I Hear? Translation, Expansion, and Crisis in the European Court of Justice
Abstract and Keywords
This chapter examines the impact of EU enlargement on the Translation Services of the Court of Justice of the European Communities. The Translation Service is already struggling with stagnating resources and an ever-increasing workload. Eastward enlargement will not only amplify existing problems, but create new ones.
A little neglect may breed mischief: for want of a nail the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost.
This chapter explores the implications of enlargement for the Translation Service of the Court of Justice of the European Communities (Court of Justice), a small but integral part of the multi‐lingual European Union. Under the principle of equality of languages set forth in Regulation 1 of the Council, the Court of Justice is required to allow citizens of member states to bring and defend legal actions in their native language. In every case before the Court, at least some documents must be translated into all of the official languages of the Union and multiple translations of most documents before the Court is the norm. The Translation Service's task is (p.247) to translate accurately and consistently the 325,000 pages of complex legal documents the Court receives each year.
The Translation Service is already in crisis, with delays in publishing opinions of the Court. Over half the time needed to reach a decision in a case is attributable to delays in translation and delays of two years or more in publishing a decision are common. However, because of the requirements under the Treaties, the Court of Justice has almost no power to further limit the number of pages of text it translates, and the number of pages submitted for translation has steadily increased over the past decade. Moreover, the resources of the translation service have remained stagnant. This crisis will only worsen and pose great risks for the entire European Union upon enlargement.
With the expansion of the EU, the number of languages may rise by as many as five, and this will result in an increase in the number of potential language combinations (i.e. translating from Polish to French, Polish to Hungarian, Polish to Finnish, etc.) from 110 to 240. Thus, the workload of the Translation Service will more than double, even though the number of languages will increase by less than 50 per cent. Some analysts argue that the workload increases caused by the next round of enlargement will result in chaos at the Court and delays of four or more years to process cases are possible. As cases pile up, businesses and governmental institutions will be forced to operate for extensive periods of time in an environment of legal uncertainty.
In the most basic sense, this chapter concerns the impact of enlargement on the Translation Service, a service already suffering from stagnating resources and an ever‐increasing workload. But in a broader sense, this chapter also concerns the European Union as an organization and the neglect that key parts of such a complex, multi‐lingual organization may face when asked to change and adapt to new circumstances, challenges, and goals. Yet more than organizational efficiency is at stake. Put bluntly, the Court's reputation will suffer if it appears unable to reach decisions in a timely manner and this can only lessen reliance on and respect for European Union law.
In the first section of this chapter, I will examine the Translation Service from an organizational perspective. In effect, organizational structures and pressures operate largely to deflect attention from the internal working of entities like the Translation Service and towards the needs of the incoming candidate states. By deflecting attention from internal problems, the organizational structures become resistant to internal change. In the second section, I will describe the process of translation, and set out the nature and origin of the current crisis in the Translation Service in some detail. In the third section, I will discuss the most recent impact of enlargement on the translation regime by focusing on the recent accessions of (p.248) Finland and Sweden. Eastward enlargement will not only amplify the problems experienced in this previous enlargement, it will create significant new problems for the Translation Service. The final section will address the implications organizational structure has for potential reform, and argue, that short of chaos, potential reforms will face a great deal of organizational resistance.
An Organizational View of Enlargement
The Translation Service of the Court of Justice is a part of a larger organization, the Court of Justice. The Court of Justice is embedded in a still larger organization, the European Union. To understand the nature and source of the crisis in the Translation Service, one must understand that each of these entities faces different pressures that result in different foci of attention. As Herbert Simon (1976: 294) suggests, information is not the scarce commodity in organizations, attention is. The more complex an issue, the greater the number of competing claims on decision‐makers. March and Olsen (1979: 38–9) argue that the position within a hierarchy regulates access to decisions and information, and the attention patterns depend on both. In order to allocate the scarce resource of attention, one must weigh both the substantive and symbolic costs and benefits of attention (March and Olsen 1979). In a complex decision situation, interorganization conflict is more likely than in non‐complex situations (March and Simon 1964: 119). Also, organizations and the people in them learn from prior experiences. They use past experiences to draw implications for future actions (March and Olsen 1979: 60). But not all participants will have the same view of events since the flow of information within an organization is seldom perfect and often depends on perspective. Different parts of an organization see different worlds (March and Olsen 1979: 59). For a variety of reasons—number and complexity of demands, place in the hierarchy, and perspectives on past experiences—a crisis may be obvious and critical to one part of an organization, yet may not draw the attention of the rest of the organization. The pertinent organizational question is whether individuals who are aware of the need for reform have the power to affect reform.
In this case, the power to reform the Translation Service rests almost wholly outside the service and even outside the Court itself. As discussed below, action by the Council and the Commission would be necessary to change the rules regarding translation. Cooperation of the Parliament is necessary in order to increase the Translation Services budget. The Court of Justice, unlike the United States Supreme Court and most other high courts, (p.249) does not even have control over its own rules of procedure. However, the problem has not caused chaos for the organization as a whole and therefore has not yet drawn the attention of these policy‐makers.
From an organizational perspective, enlargement must be looked at as a stimulus for attention. But far from being monolithic, enlargement creates a bundle of different stimuli, each of which has a different impact on the EU in general, the Court of Justice, and the Translation Service. Enlargement is, to say the least, an extremely complex issue. Scarcity of attention is most conspicuous among those who are most important to or interested in decision‐making (March and Olsen 1979: 45–7). Thus, the decision‐making bodies of the European Union at large—the Council, the Commission, and the Parliament—have the most demands on their agenda.
In this instance, the next round of enlargement presents a very clear challenge to the EU at large. What is new about this upcoming of round of enlargement—and therefore more interesting to policy‐makers—is that the first former communist‐bloc nations will likely join the European Union. Since these applicant states have many hurdles to overcome in order to join the European Union, the focus of the European Union has been largely external. The main issue is the ability of these candidate states to meet the requirements of membership rather than whether the European Union has sufficient structures in place to accept the new members (Commission 1997a). This external focus is not incorrect, but it is incomplete.
As will be described in some detail below, the Translation Service has inherently less symbolic and substantive interest for policy‐makers than far‐reaching projects such as the European Monetary Union and enlargement. Also, while the signs of trouble are visible to the service itself—increasing workload, diminished job satisfaction, and loss of skilled employees—there are few overt signs of the worsening condition in the organization as a whole. Further, the internal structures have appeared largely adequate in the past rounds of enlargement, especially with the most recent round. Thus, while the Agenda 2000 states the administrative burden of translating five additional languages should not be underestimated, it only acknowledges this burden once in the two‐volume report.
Yet, the European Union, the Court of Justice, and the Translation Service are deeply interdependent. Scholars have argued that during the Eurosclerosis period, the Court was the primary engine of integration (Weiler 1994). In forming a constitutional legal regime, the Court of Justice firmly entrenched the doctrines of supremacy and direct effect. The doctrine of supremacy1 holds that, in conflicts between national and (p.250) Community law, Community law takes precedence. The doctrine of direct effect states that Community law gives individuals legal rights that are enforceable by national courts.2 The Court has also untangled the issues surrounding free movement of goods by requiring mutual recognition of the standards of the producing state (Dehousse 1989: 5–18). Stone Sweet and Brunell (1998: 105) note that as a result of the constitutionalization of the Treaties, the capacity of the member‐state governments has been reduced, while the policy influence of supranational institutions, national judges, and private actors has been upgraded. Because of its institutional structures, the Court's decisions have had an almost exclusively centralizing effect on the European Union as a whole, augmenting power at the supranational level at the expense of the member states (Mullen 2000). Thus, the Court has had a central role in the process of integration—a role that may be at risk if the burden on the Translation Service is not adequately addressed.
Translation and the Court of Justice
A recent report of the Court of Justice notes that a lack of resources places the Court in a crisis situation with regard to the duration of proceedings.3 Currently, the average amount of time necessary for the Court of Justice to reach a decision is well over a year and a half and well over half of this delay is related solely to translation.4 References for preliminary ruling average 21.4 months from filing until judgment, direct actions take 21.0 months, and appeals take 20.3 months.5 In a reference for preliminary ruling (Article 167), a national court refers a question to the Court of Justice to decide if European Union law is applicable. In the case of preliminary ruling, a national court will have to delay its proceedings, on average, for over twenty‐one months to receive a ruling from the Court of Justice on the applicability of European Union law. If a company is alleged to have engaged in anti‐competitive practices, the time necessary for a decision may easily stretch over three fiscal years, affecting the ability of the company, and other similarly situated companies, to plan and engage in commerce.
(p.251) The main problems facing the Translation Service are a constantly increasing workload, stagnating resources, and an impending overwhelming increase in workload with the next round of enlargement. The reason that no attention has been paid to this situation is twofold. First, the pressures felt by this crisis have heretofore been largely internalized. The Translation Service has, through increases in workloads and efficiency, been able to keep up to this point. While this has created a great deal of stress internally, the impact on the organization as a whole has been slight. Second, for the most part, the previous rounds of enlargement did not create any problems visible outside the Translation Service. The second and more severe stage of this crisis will likely occur with the next enlargement, because previous experiences with enlargement will be inadequate.
Organization and Procedure
The Translation Service of the Court of Justice is organized as a directorate that reports to the Registrar of the Court. Each of the official languages of the European Union has a language division consisting of a head of division, approximately twenty lawyer‐linguists, and six to ten secretaries and proofreaders. The lawyer‐linguists translate from the other official language into their own native languages. Therefore, each division must have lawyer linguists with expertise in all of the other official languages.6
In the view of the Court, its situation is quite different that those of other institutions. The European Parliament, for example, is considering adopting a hub system for interpretation. Under this method, three main languages (English, French, and German) would be used as hubs. For example, if a speech were given in Greek, there would be no necessity to have it interpreted from Greek into Finnish. Rather, the speech would be interpreted into one of the hub languages, and then into Finnish. The benefit of this system is to decrease the number of potential language combinations. In other words, the Finnish translators would not need to interpret from the Greek, but merely the hub language. The price in any translation is the loss of nuance. If a document is translated from an original into a second language and then this translation is itself translated, much more of this nuance may be lost.7 In the case of the Court of Justice, the nuance of language and a precise translation is essential to a level legal playing field.
(p.252) Each case before the court results in multiple translations of original documents into other official languages. The use of a language of the case and the adoption of French as an internal working language has helped minimize the translation burden, but each case brings its own difficulties. The language of the case8 is used in the written pleadings or observations submitted for all oral pleadings in the action. Currently, there are twelve official languages: Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish, and Swedish. To date only Irish has not been used by the Court as a language of the case. The language of the case must be used in any correspondence, decisions, or reports addressed to the parties in the case. In direct actions,9 the party bringing the action chooses the language of the case. However, where the defendant is a member state or natural or legal person holding the nationality of a member state, the language of the case is the language of the defendant. In references for preliminary rulings (Article 167), the language of the case is the language of the national court making the reference. In appeals from the Court of First Instance, the language of the case is the language of the case used before the Court of First Instance.
The major exception to the language of the case regime is that member states are permitted to use their own language in their written statements and observations, and oral pleadings. This requirement stems from the principle of equality of languages of the member states set forth in Regulation 1 of the Council (ECJ 1999: section 2). The Court views this right as more of a matter of substantive justice than administrative convenience or national dignity. As a matter of justice, to prohibit a member state from arguing before the court places a country in a disadvantage to a member state that argues in its own language. The appearance of a level playing field for all participants is essential to the legitimacy of Court of Justice. Courts that appear to give an advantage to one side in litigation risks losing its status as a neutral arbitrator.10
The use of the language of the case and the adoption of the internal working language greatly reduces the burden of translation. Because the judges and advocates do not request translation of their documents into their native tongues, the Translation Service can focus on translating documents related to the substance of the case. Despite this, an Article 167 reference has several stages where documents are required to be translated (p.253) into all official languages, and other stages where it may be necessary to translate to or from all languages depending on the amount of interest in the case. The Court of Justice is required to translate in every case that comes before it and it has no control over the number of cases that are brought. Thus, despite greatly limiting the need for internal translation, the Court of Justice has virtually no further control of the number of documents that are submitted for translation.
For example, under Article 167, the Court of Justice receives a request from any national court to rule on whether European Union law is applicable in a case then before that national court. The ultimate ruling in a reference may, of course, have implications beyond the parties involved. While the language of the referring national court becomes the language of the case, the reference is translated into all the languages of the European Union and published in the official journal, allowing any interested party to receive notice of the reference. Each member state receives the order in the original and translated version. The parties, institutions, and member states are entitled to file written observations and the member states are permitted to file their observations in their own languages.11 All observations are translated into the language of the case and the internal working language of the Court of Justice. These observations are sent to the member states and parties to enable them to adopt a view as to a need for a hearing. A Judge Rapporteur is assigned to the case and drafts a report for the hearing in the internal working language and this report is then translated into the language of the case. The report for hearing is then sent to the interested parties in the language of the case. The Advocate General drafts an opinion and this opinion is translated into the language of the case. The Judge Rapporteur writes a draft judgment in the internal working language and the Chamber hearing the case deliberates and decides on the judgment. Once a judgment is delivered, it is translated into all the languages of the European Union and delivered in open court and appears on the Court of Justices Internet site on the same day. Finally, the judgment and the report of the Advocate General will appear in the Official Journal in all languages.12 While the Court has limited the numbers of pages to be translated, the need for extensive translation is present in all cases before the Court.
The number of documents that require translation has increased yearly since 1993. The yearly rate of growth of the number of incoming pages was 14.2 per cent between 1993 and 1998, increasing from 167,144 to 325,115. The yearly growth rate for outgoing work was 16.6 per cent between 1992 and 1998, increasing from 122,245 to 307,108. Since the last addition of language translation staff in 1995, the growth rate in outgoing pages has been 43 per cent.
The number of pages of untranslated work in hand has fluctuated, but is currently moving in an upward trend. The Court of Justice projects that the number of pages in hand will reach 250,000 pages by 2001 (ECJ 1999: annex C, section 6).
The numbers alone do not reflect the difficulty involved. The Court of Justice must ensure that translations are uniform across all languages. Consistency is essential. Also, since much of the law relies on statutory interpretation and precedent, the decision must be consistent with prior decisions and with the acquis communautaire.13 The same terms must be translated in the same way in each case and among the languages of the various member states. Highly trained lawyer‐linguists, familiar with the (p.255) legislation, case law, and terms of art of the acquis in multiple languages are necessary for the Translation Service to properly function.
Given the adoption of an internal working language, the bulk of the translation effort is related to the translation of documents related to the conduct of cases and the publication of decisions. In 1998, 66 per cent of the pages translated were for publication in the Court Reports and 18 per cent were related to procedural documents filed by the parties. Approximately 16 per cent were related to duties such as the publication of the Annual Report of the Court of Justice and less than 1 per cent related to purely internal administrative work (ECJ 1999: annex C, section 6.1.1). The Court of Justice has taken substantial steps in limiting unnecessary translations, and the bulk of the Translation Service's time is devoted to processing case law and fulfilling other legal requirements.
Performance of the Lawyer‐Linguists of the Translation Service
While the Court has eliminated virtually all extraneous translation, an additional question remains. Do the lawyer‐linguists translate an adequate number of pages? As noted above, the output has been on an upward trend while the staffing has remained constant. Thus, the lawyer‐linguists are doing better, but again, this begs the question, better compared to what? The translation duties between the various institutions of the European Union may not be strictly comparable, since the burdens of translation may differ. However, there are many similarities, and most importantly of all, the need to translate into multiple languages. Thus, while not a perfect measure of performance, a comparison between institutions provides at least a rough basis for comparison. In such a comparison, it appears the lawyer‐linguists outperform the other institutions' linguists. As indicated in Figure 13.2, on average, the number of linguists needed to translate 100,000 pages is 124.7 for the Commission, 113.7 for the Council, 101.7 for the European Parliament, and 83.0 for the Court of Justice (ECJ 1999: annex C, section 2.1.1). For every 100,000 pages translated, the Court of Justice requires almost forty‐two fewer translators than the Commission and almost nineteen less than the Council. These statistics tend to support the position of the Court of Justice, which argues that the Translation Service is at a maximum level of output under its current level of resources.
The Current Crisis
The origin and nature of the crisis are fairly simple to understand. The Court has no further ability to limit the increase in its workload, nor does it have the ability to allocate more resources to handle this workload. The (p.256)
Enlargement: Learning from Past Experiences?
The most recent enlargement of the European Union saw the addition of the Finnish and Swedish language divisions. (Obviously, the third new member state, Austria, was served by the existing German language division.) According to the officials in charge of these divisions, one of the most surprising challenges was an almost complete lack of formal structure for the new divisions. Rather than any institutionalized orientation, the new services were left to their own devices, with the first translation of a decision due within ten days of commencing work. Both the Finnish and Swedish divisions experienced some early difficulties and frustration with (p.257) translating Court proceedings as a result of this lack of structure. Within a year or so, these services adjusted to their new tasks and experienced an increase in both efficiency and quality of work.15
Sweden and Finland provide some insight to the problems associated with accession. Both countries joined a well‐established Union and were faced with accepting and digesting a large aquis prior to membership. Their languages were sufficiently different from the existing languages to create new difficulties for the Translation Service. The experiences of these two member states indicate that the eastward enlargement will be even more difficult. Both Sweden and Finland have a solid basis of administrative structures and civil law. The rule of law has not only existed, but has taken time to find a shape and a national style. The economies of these two member states have been functioning in a market‐based structure. In the case of the former communist‐bloc states, however, the story is different. In effect, these candidates for membership must develop a highly sophisticated economic, administrative, and legal structure where there was little or no prior structure.16 As Agenda 2000 states, the legal structures of the countries emerging from planned economies have neither the tradition nor administrative structures necessary to institute the rule of law. Thus the potential member states must not only establish new formal structures, but will be faced with the task of unlearning the informal norms established during approximately forty years of communist legal systems and command economies. Thus, the burden is greater for these potential members, and the burden faced by their Translation Service will be even greater than experience in accessions (Commission 1997a: ii).
The first step to accession is the acceptance of the acquis communautaire by the candidate states. While some adjustments or deferrals of obligations may be made during a temporary transition period, the candidate states are required to adopt the acquis as a condition of membership. Thus, accession negotiations are less symmetrical than typical negotiations. From the point of view of the Union, it is the applicant state that has requested to join because of the advantages membership entails (Avery and Cameron 1998: 53). Herein lies a major problem for the Translation Service. At the moment, to varying degrees, the applicant states are translating the acquis of the European Union, as have current members prior to their accession. The results have varied, since the individuals who translate the acquis may not be lawyers or well versed in (p.258) European Union law. This language then becomes ‘official’ upon accession and the member states are bound by its terminology. The results have been mixed. In the case of Sweden, the translators have been able to work around any discrepancies without a great deal of trouble.17 On the other hand, the head of the Finnish translation division has stated that the prior translations of the acquis have created many problems for his lawyer‐linguists by using inappropriate terminology.18 Obviously, the burden of the acquis will be greater for the former communist‐bloc applicant states than it was for Finland and Sweden and the difficulties in translation may well be compounded.
Yet despite the little guidance and in some cases questionable translation of the acquis, the new directorates muddled through. As Figure 13.1 shows, the gap between output and pages submitted for translation actually grew as the new directorates first began their work. Obviously, it took some time for lawsuits from the new member states of Austria, Finland, and Sweden to become a burden on the Court. As Figure 13.1 on page 254 shows, by 1997, the increase in number of pages submitted had once again outstripped output of the Translation Service as the impact of these new members began to be felt. Thus, the addition of these two new languages did not have a great immediate effect on the overall level of output. This was due mainly to the efficiency of the Translation Service and the sacrifices made by the Court in foregoing internal translations. In the next round of enlargement, there will be little capacity for an increase in the internal capacity of the Translation Service, and the burden is likely to be greater both in the new and existing language divisions.
The Next Round of Enlargement
New applicants will face the same lack of structure and likely a similarly deficient acquis. Given their short history in market‐based economies, their growing pains will arguably be worse. However, it is the potential increase in the number of existing language combinations that will pose the greatest problem for these new divisions, as well as compounding the problems of the existing divisions. With the planned eastward enlargement of the Union, the number of official languages may well rise from eleven (excluding Irish) to sixteen. While this rise may not seem to be substantial, with the addition of each new language, the number of potential language combinations multiplies. The eleven current official languages have a total (p.259) of 110 language combinations. The likely addition of five more languages after the year 2000 will more than double the potential number of language combinations to 240.19 The addition of five languages not only necessitates the addition of new directorates for each language, but a corresponding increase in the capabilities of every existing directorate. Regardless of how skilled a new Polish or Hungarian directorate may be, the existing directorates will see the number of languages they are responsible for translating increase by almost 50 per cent. In effect, approximately twenty lawyer‐linguists of each existing division will be responsible for accurately and consistently translating sixteen languages. Aside from the increase in page numbers, the number of different language combinations for which each lawyer‐linguist would be responsible would be beyond his or her individual capacity.20 Simply adding a new division as in the last enlargement will be wholly insufficient. At a minimum, each existing division will have to be significantly enlarged as well. Thus, the existing crisis is likely to get much worse and ‘chaos’ looms. However, the organizational structures are likely to prevent any reforms in the interim.
Resistance to Reform
As discussed below, three main organizational factors act to make reform in the Translation Service unlikely, at least in the short run. First, the European Union is a complex organization and enlargement is a complex undertaking. This alone would prevent a support service such as the translation receiving organizational attention, given the fact that the Court shows few external signs of the internal crisis that is occurring. Second, however, the next round of enlargement presents both substantive and symbolic issues that have drawn the attention of policy‐makers away from the internal operation of the European Union, and toward the needs of the applicant states. Finally, the Translation Service is a victim of its own success. The past experiences with enlargement will reinforce the belief of the larger organization that the current internal structures are adequate for future rounds of enlargement.
The European Union is an extremely complex organization. This inherent complexity causes a lack of attention to be given to the work of the Translation Service. The Court has been aware of the looming crisis for several years but other parts of the organization with the capacity to make the structure and fiscal decisions necessary to mitigate the crisis seem to be (p.260) unaware of the very nature of the crisis. Yet, this situation is to be expected in an organization as complex as the European Union. This is not a story of the ‘good’ Translation Service versus the ‘bad’ Parliament, Council, or Commission; rather, it is a story of the disparity in focus, attention, and distribution of power between large, complex parts of an organization and a small, focused, technical, yet important part. To the observer outside the service, little has changed in the past several years. While the drastic increase in the number of pages submitted for translation is the chief concern of Translation Service, the other entities are more concerned with the overt functioning of the Court of Justice. This manifests itself mainly in the amount of time necessary for the Court to reach and publish a decision. The length of this delay has increased, but not nearly as dramatically as the increase in pages submitted. In 1995, the average time for decisions was 18.7 months (average of all types of actions before the Court). In 1998, this was 20.9, an increase of 2.2 months on average. There was an increase in the time needed for a decision, but not a startling increase by any means. In short, the internal problems have heretofore not created an external trigger that would focus the Commission or Parliament's attention onto the problem.
The very nature of the next round of enlargement will draw the attention of the European Union away from the internal and towards the demands of the external. The attention of the policy‐makers is focused on condition of the applicant states and their ability to comply with the acquis, not the ability of European Union to accept these new members. The Commission's recent White Paper on enlargement, Agenda 2000, is focused almost entirely on ensuring the ability of the applicant states to reform their administrative structures and to reach the fiscal standards of the European Union. Less thought is being given to whether the European Union has the structures in place to accept these candidates. In addition, a move towards budgetary discipline works against any moves toward internal budgetary increases. The main stated objective of the preaccession strategy is to ‘prepare the Central and Eastern European applicant countries for accession to the European Union’ (Commission 1997a). Applicants must meet several political criteria and have stable institutions guaranteeing the rule of law, respect for human rights and the protection for minorities. Also, they must meet the rigorous economic criteria and establish a functioning market economy that can withstand the competitive pressures and market forces that exist in the Union. This is no small task for nations recently emerging from planned economies and having few structures capable of functioning in a market economy or under a Western conception of rule of law. The applicant nations most likely to be the next members in the European Union—Hungary, Poland, Estonia, the (p.261) Czech Republic, and Slovenia—all have made steps toward fulfilling the requirements of membership, but policy areas such as agriculture, environment, transport, and energy require further reform prior to membership (Commission 1997a). Thus, the focus of the Agenda 2000 is external. For the most part, it should be. Yet, it appears to leave potential internal problem areas such as the Translation Service virtually unmentioned.
Finally, given the experience of the prior round, there is little overt reason for policy‐makers to be concerned with the translation in the upcoming rounds. The fact the last round of enlargement did not cause a major increase in the delays in delivery of decision by the Court of Justice will also work against attention being paid to the Court in future enlargements. Despite the internal struggles of the service, its outward signs of performance simply did not deteriorate to the extent necessary to make its problem a problem for the European Union at large. Therefore, it is not yet a problem for the policy‐makers who may undertake the necessary budgetary and structural changes that would alleviate the current looming crisis. As is often the case, the problem will have to get much worse before it gets better.
The conclusion seems inescapable, the prospect for substantial internal reforms in the short run are bleak. Yet given the focus on the applicant member states in this probable upcoming round of enlargement, one expected reform would be in the pre‐accession translation of the acquis. This has occurred to some extent, as the European Union has provided funds to aid the applicant members in the task of undertaking a workable translation of the acquis. Through the PHARE program and under the auspices of the TAIEX (Technical Assistance Information Exchange Office), the European Union has provided funds and expertise to help applicant states to comply with the acquis (Commission 1997a).
Potential internal reforms fall into three broad categories: budgetary and administrative reform, language reform, and structural reform of the Court of Justice. These reforms have little prospect for implementation until Court delays caused by the looming crisis reach a level that draws the attention of the policy‐makers. The officials of the Translation Service believe it will take the ‘chaos’ of enlargement to disrupt the Court of Justice sufficiently to draw attention to the problem. Even then, each of these areas will suffer from resistance to some extent. I will discuss these reforms below, and argue that the prospects for administrative and budgetary reforms offer the path of least organizational resistance over the long run, so are likely to be the eventual solution to the coming crisis simply because it is the easiest to implement.
Increases in budget are obviously one way to solve a problem of administrative overload. Yet simply adding more lawyer‐linguists will not be a sufficient solution. At the moment, the translation directorate is remarkable for the small number of administrators. As stated earlier, the organizational structure for each language division is quite flat, with one division head overseeing all of the lawyer‐linguists. The heads of division argue that this structure is becoming unwieldy. Therefore, if the budget were to be increased, a corresponding restructuring of the divisions would be necessary with the addition of two or more intermediate supervisors under the division head, with each division having a three‐level administrative structure rather than the current two levels
This reform would likely be a sufficient short‐run solution to the problem. The main source of resistance would be the economizing trends discussed above. Yet, while this might work for the next round of enlargements, the prospect of future enlargements might mean an ever‐increasing number of language combinations, and an increasingly larger bureaucracy in Luxembourg. At some point, the sheer addition of member states will overload the Court of Justice with cases, and cause delays regardless of the Translation Service.
Language reforms might offer some solutions to the problems of the Translation Service. The problem, of course, is that any reforms in this area could conflict with the principle of equality of languages of the member states set forth in Regulation 1 of the Council. Changing Regulation 1 would change relationship of the member states to the European Union and to each other. In effect, if certain languages were adopted as ‘official’ languages, some member states would be, at least in the linguistic sense, less equal than others. Serious questions of national dignity might arise, and any moves to limit the number of languages would likely be quite controversial.
However, reforms to the language regime do not necessarily have to run astray of the Regulation. Using a ‘hub’ system where all languages could be translated into a few of the more commonly used languages would reduce the number of language combinations, but only at the possible risk of reducing the reliability of the translation. In addition, reducing the number of documents translated may help alleviate the pressure on the Translation Service. One suggestion has been to translate the Opinion of the Advocate General only into the language of the (p.263) case21 and perhaps two or three of the more common languages. This Opinion tends to be a long document that is published simultaneously with the judgment of the Court, and may be quite useful to practitioners in explaining the rationale for the Court decision. However, this Opinion does not require an answer from the party, nor does it create binding precedent. Therefore, failing to translate this document would not prevent anyone from arguing to the Court in his or her own language. Yet it would make legal research more difficult for speakers of less commonly used languages. Thus, some language regime changes are possible without major structural changes or impinging upon the national dignity of the member states to any great extent. However, like budget increases, eventually the European Union may become too large for its centralized court to provide a sufficient legal system. A more decentralized system may ultimately be necessary.
Structural changes in the form of decentralization may offer the best long‐term solution to Court delays. Setting up ‘circuit’ courts modelled on the US system in the various member states is one possibility that would allow quicker resolution of cases. In fact, the current US multi‐level federal court structure resulted from the pressure caused by national expansion of the US Supreme Court. Notice requirement could be relaxed since the decision would bind only the circuit in question, with Court of Justice presiding over conflicts between the circuits. The President Judge of the Court of Justice presented a similar option in recent remarks to the Council of Justice Ministers. He reiterated the view that all national courts, regardless of their status, should retain the power to refer questions to it for a preliminary ruling. However, he suggested the introduction of a filtering system that would decide the questions that need to be answered at Community level on the basis of their complexity or importance. This would involve setting up judicial bodies in each member state, having either Community or national status, with responsibility for dealing with references for preliminary rulings from courts within their territorial jurisdiction.22 Generally, by filtering the less important cases out at an intermediate level, the Court of Justice could limit the growth in its caseload, and provide all member states access with access to a court in their own language. This would require the addition of a vast new institution whose (p.264) reach would extend throughout the Union. It would require the agreement of the member states to undertake a financial commitment that would probably be as large or larger than the current budget of the Court of Justice. Such an investment would no doubt face considerable resistance. Yet if the bold predictions for future enlargements hold true, the burden of litigation may simply be too much for any one court. Structural reforms that offer some filtering mechanism that reduces the burden on the Court of Justice may be the best long‐term solution to ensure a functioning European legal system.
What then will become of the Translation Service of the Court of Justice? The Report on Translation argues that at ‘approximately 300,000 pages per year, the output capacity of the translation Directorate with its current resources has reached its ceiling’ (ECJ 1999: annex C, section 6.1.2). Given the comparison of outputs with the other institutions, it is difficult to argue that the Translation Service is not operating at a very high level of efficiency. Internally, working hours are increased and job satisfaction is declining. Each year, regardless of enlargement, the caseload of the Court of Justice rises. In the short term, even without enlargement, there does not appear to be any reason to believe that Europeans will turn to the Court of Justice less frequently in the immediate future. The President of the Court of Justice predicts that the caseload will increase even without enlargement, because of the commencement of the third stage of the Economic and Monetary Union, and the entry into force of the Treaty of Amsterdam and of certain conventions drawn up under the Third Pillar of the European Union (justice and home affairs).23 Indeed, if the Report on Translation is correct, the number of untranslated pages will increase to a projected 250,000 in 2001 (ECJ 1999: section 6.1.3).24 The best‐case scenario is a sharper increase in the amount of time necessary for a case to work its way through the Court of Justice. Currently, the average time it takes the Court to reach a decision has steadily increased, and what can be expected is that the pace of this trend will increase more quickly, and delays of over three years are quite plausible in the next few years.25
(p.265) Yet, the real ‘chaos’ may occur with enlargement. The new applicant states will have greater burdens placed on them and will present greater burdens for the European Union. At this point, the delays may become so severe that they will draw the attention of policy‐makers. However, as argued above, the price paid for this attention may be an inability of the Court to reach decisions in a timely manner. With potential delays of five years or more, the Court risks losing some of its relevance as a force for integration of Europe and development of the rule of law in the member states. Simply put, if the Court is seen as being unable to fulfill its mandate, member states and individuals will then become less likely to look to the Court to settle disputes and questions of law. The Court has played an important role in integrating new members into the Union by settling questions of the applicability of European law. If the crisis in the Translation Service remains unresolved, the integration of new members states into the Union will undoubtedly be much slower. This would make the next transition period more difficult and contentious as the states' rights and duties under the acquis would remain unresolved due to translation delays. More importantly, the role the Court has played as a force for integration would inevitably lessen, and the pace of integration itself could well be delayed.
The aphorism about not fixing something ‘until it is broken’ is somewhat misleading in the case of organizations. The breakdown needs to not only occur, but also be apparent. Otherwise, it will not garner the attention necessary for it to reform. A small part of an organization such as the Translation Service may be broken for some time before it is fixed. Until delays become a problem for the organization as a whole, little is likely to be done.
Yet the focus on the applicant states is not misplaced. Their entry into the European Union has substantive importance for the economic well‐being of its members and the security of the region, but is also important as symbolic evidence of the progress and stability of democratic institutions in Eastern Europe. The focus of Agenda 2000 is not incorrect, but it is incomplete. Small things add up. The Translation Service is a necessary part of the Court of Justice. If it fails, the Court risks not fulfilling its core tasks in a timely manner. The need for an outward‐looking policy and fiscal constraints should not preclude a concurrent audit of internal structures. If such self‐examination is undertaken, then the ‘chaos’ of enlargement may not be a necessary prelude to reform.
The author would like to thank Alberta Sbragia, Bert Rockman, Guy Peters, and Chad Damro at the University of Pittsburgh, Giuliano Amato at the European University Institute, and Giuseppe Tesauro, former Advocate General of the Court and President of the Italian Antitrust Authority, and the editors for their assistance in completing this project. I would like to thank Dr Kurt Reichenberg, Dr Kari Liiri, and Dr Ingalill Lindblom of the Court of Justice for consenting to lengthy interviews and providing information and assistance to me in Luxembourg. This chapter was researched while I was the 1998–9 European Community Studies Association Marshall Fellow at the European University Institute and I would like to thank the European Community Studies Association and the Delegation of the Commission of the European Communities in Washington, DC, for funding this Fellowship, as well as the Center for West European Studies and the University Center for International Studies at the University of Pittsburgh for additional financial support.
(1) Costa v. ENEL (1964) ECR 585.
(2) Van Gend en Loos v. Nederlandse Adminstratie der Belastingen (1963) ECR 1.
(3) See ECJ 1999: section 2. Various translations of the ‘Report on Translation’ are consistent in organization, but not in pagination. Therefore, throughout this chapter I have cited sections rather than page numbers. All quotes are from the English‐language version.
(4) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg.
(5) Annual Report of the Court of Justice.
(6) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg, and ECJ 1999.
(7) The Financial Times (24–5 July 1999).
(8) Art. 29(1) of the Rules of Procedure of the Court of Justice. See ECJ 1999: section 2.
(9) Direct actions include actions brought by member states, institutions or legal and natural persons in an action for failure to comply with treaty obligations (Arts. 169, 170, and 171), actions for annulments (Art. 173), and for damages (Art. 178).
(10) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg. Report on Translation, section 2.
(11) Art. 20 of the EC Statute of the Court of Justice.
(12) Direct Actions before the Court of Justice also have a similarly complex translation regime and the requirements for notice and delivery of judgment are virtually identical. See ECJ 1999: annex B.
(13) Technically, precedent does not bind the Court and previous cases do not control subsequent cases. However, in practice, the Court tends to follow its previous judgments, therefore, these judgments are important to the Court and litigants.
(14) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg.
(15) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg. Interview with Ingalill Lindblom, Head of Division, Swedish Translation Service, 30 Apr. 1999, Luxembourg.
(16) Interview with Ingalill Lindblom, Head of Division, Swedish Translation Service, 30 Apr. 1999, Luxembourg.
(17) Interview with Ingalill Lindblom, Head of Division, Swedish Translation Service, 30 Apr. 1999, Luxembourg.
(18) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg.
(19) The Financial Times (24–5 July 1999).
(20) Interview with Kari Liiri, Head of Division, Finnish Translation Service, 27 Apr. 1999, Luxembourg.
(21) Interview with Ingalill Lindblom, Head of Division, Swedish Translation Service, 30 Apr. 1999, Luxembourg.
(22) Press Release No 36/99–28 May 1998. Press and Information Division, Court of Justice of the European Communities.
(23) Press Release No 36/99–28 May 1998. Press and Information Division, Court of Justice of the European Communities.
(24) In fact, the Court of Justice uses an 11% annual increase to predict the increase in pages in hand.
(25) Annual Reports of the Court of Justice of the European Communities (1995, 1998).