The patent blogs – yes, there are such things – have been buzzing this week with the opinion given by the advocates-general of the Court of Justice of the European Union (ECJ) on the legality of the proposed scheme to make the patent process more competitive in the EU. And thank goodness for the blogosphere, because without it the opinion might have remained hidden.It was published on 2 July yet not put on the ECJ website, and only unearthed by the blogs in the past week. As they themselves ask, why was the opinion not openly published?
I wrote on this topic in July but it is worth revisiting. In brief, to make the EU more competitive, and to bring down the costs of filing a patent (10 times higher in the EU than in the US, mostly as a result of translation), a proposal has been promoted to limit the future translation of patents to three languages: English, French and German. Now the advocates-general have given their opinion on the principles of such a scheme in advance of the formal ECJ judgment, which is expected later this year.
In my July piece, I concentrated on the fact that the proposed scheme made some EU languages – in this case, English, French and German – more equal than others. The relevant part of the advocates-general opinion as it relates to languages is: ‘Consequently, a company may be summoned in law in a language in whose choice neither its country of origin nor the country where it carries out its commercial activities has participated. In the absence of any provision in the draft agreement allowing the central division to depart from the rule of the language of the patent or allowing the defendant to obtain translations of procedural documents, this linguistic system appears to be unacceptable with regard to observance of the rights of defence.’
The new language scheme is ruled out, therefore, because it limits the rights of defence. Indeed, the whole scheme is ruled out as being incompatible with the treaties. But I want to concentrate here on the language issue alone. The point made about rights of defence is understandable, and of course the ECJ must concentrate on the law. But the EU is faced with a stark choice between two opposing principles. On the one hand, there is multiculturalism, which says that for everyone to feel at home in the EU we should be able to speak our own language. That is undeniable. On the other hand, there is efficiency (see the 10 times higher cost of filing a patent, mostly because of translation) which says that, if EU business is to succeed in a competitive global market, language choices have to be made.
The EU is built on many fissures. That is almost its raison d’être, to contain the fissures that exist in Europe and prevent them from growing into serious conflict. None of the current divisions looks remotely likely to lead to war, and we are familiar with many of them: the north-south differences, for instance, or the varieties in legal systems. Mostly they are gently accommodated. But one particular problem keeps nagging and threatening to become more ugly. That is the issue of what to do about languages. So far, the EU’s response has been to throw money at them – around €1 billion of taxpayers’ money is used annually in ensuring that documents and meetings are translated and interpreted.
But money goes only so far, and there are problems that it cannot solve. One is that it cannot change global trends, such as what languages – other than their own – young people choose to study. For instance, the GCSE results published this week show a continuing decline in the numbers studying the principal European languages. The UK is by no means alone in showing that the range of languages students wish to study is changing and narrowing, which causes a problem for the EU institutions trying to recruit sufficient people to keep the principle of multiculturalism alive, at least at official level. Even now there are many meetings where the majority of languages are not offered because of lack of resources, and so brutal choices are made: effectively, the languages spoken only in smaller countries are ignored.
We are all taxpayers. We are all voters. The theory is that we make the choices for our political leaders to follow, whether at national or EU level. So which is it to be: right of defence in your own language, or competitiveness? I suspect that this is a question which will be posed more often and more sharply in the coming years, and one or other principle is going to have to give.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies
- For more Euro blogs go to http://www.lawgazette.co.uk/blogs/euro.