Language barriers at the European Court of Justice are delaying important cases, reports June O'Keeffe



It is hard to imagine that a civil servant who wants to appeal the outcome of a performance appraisal should be judged by the same court that decides on multi-million pound mergers by the likes of IBM and Sony.

While such cases do, very rarely, set important precedents, that is really the exception rather than the rule.


The European Court of Justice (ECJ) has many such quirks and anomalies. The good news, however, is that in 2005 a specialist civil service tribunal was set up to deal with this particular one, and hear the hundreds of cases brought by disgruntled officials every year. It is hoped that this will free the Court of First Instance to focus on cases that are more important from an economic or EU law perspective.



But the bad news is that this reform may only have a limited impact on the current delays at the European courts, which are as lengthy as ever. Some of the reasons for this are common to many courts, such as an increase in litigation. Case management as we know it in the English courts has yet to make much of an impact in Luxembourg. Yet some of the reasons are particular to the European courts and its multilingual character. Bear in mind that the working language is French, so all documents have to be translated into and out of this language, regardless of the language used by the parties.



As of 2005, there were 740 cases pending before the ECJ and 1,174 before the Court of First Instance, which represents a decrease from the previous year. Given that many of these cases have already been through various appeals at national level, the maxim ‘justice delayed is justice denied’ seems apposite.



Mindful of the need to tackle the backlog, particularly of economically important competition law and merger cases, the Confederation of British Industry has been looking into the issues, as is now the House of Lords, which is seeking feedback from interested parties on how to break the log-jam.



Yet it only took the defender of the multilingual EU 21 months to uphold the EU’s multilingualism in all its glory. Interestingly, however, this has manifested itself in the right to work in your own language in another member state and results from litigation brought by lawyers.



While French might be de rigueur before the European courts, the same courts held that EU lawyers wishing to practise in French-speaking countries could not be compelled to undertake a language test organised by the local bar.



An English barrister and an English solicitor practising in Luxembourg were refused their registration by the local bar until they could prove their proficiency in all the local languages – French, German and Luxembourgish. Needless to say, the individuals concerned refused and challenged the requirement as being disproportionate and contrary to European law. The ECJ found in their favour, arguing that such requirements were clearly an unjustified barrier (see (2006) Gazette, 21 September, 5).



While lawyers from the other 24 member states of the EU are free to come and ply their trade in the UK, this may not be the case for the latest aspiring members currently queuing up to join – Bulgaria and Romania. While most of them probably speak English a lot better than we do Romanian or Bulgarian, lawyers and other workers from the two countries may not enjoy the same rights as their predecessors when they finally become members.



A debate is taking place on whether the UK should, for the first time, impose restrictions on EU nationals’ freedom to enter the UK to work. This follows the gross underestimation of the extent of the influx of workers from the ten newest member states when they joined the EU in 2004. Late last month, the European Commission shied away from recommending that the two countries’ accession should be postponed for a further year until 1 January 2008, and gave them an amber light to proceed. Do not expect those at the European courts in Luxembourg to be rejoicing at the news.



This debate on migration and its limits reached a climax in a number of countries, notably in France, as personified by the infamous Polish plumber, while the draft Services Directive was being voted on in the European Parliament.



The directive is now back on the agenda, as it is expected to have its second reading at the parliament this autumn.



Politicians, and the voters who previously took to the streets protesting about ‘social dumping’, seem to have run out of steam on this issue, and the likelihood now is that a deal will be reached on a watered-down text.


The proposals apply to ‘service providers’, a term that includes all sorts, from hairdressers to lawyers. In reality, a relatively liberal regime already exists for lawyers wishing to practise elsewhere in the EU, but attempts to maintain the status quo, as evidenced by the Luxembourg scenario, are still a real possibility.


For information about the Law Society’s work on international practice rights, contact: international@lawsociety.org.uk.



June O’Keeffe is head of the Law Society’s Brussels office