Towards peace in Europe: on legal linguistics, prosperity and European identity – the European Reference Language System for the European Union

3.1 In the Piraeus ship of fools (Pax Sinica)

Rethinking starts with talking about reality. The port of Piraeus is the first deep water port for the huge container ships coming from Asia to Europe through the Suez Channel, i.e. it is a strategic jewel. The China Ocean Shipping Company (COSCO) has bought it, a Chinese state company. We as European citizens are given the explanation that this is “privatization” in aid of saving the monetary union (Euro): Greece can thereby fulfill certain conditions for bailout packages of the European partners and the International Monetary Fund (IMF).

However, while our state leaders are dumping billions of euros^[4] in dark holes,^[5] China is systematically collecting assets. In this context, the ports of Genua and Trieste, also occupied by China, along with Piraeus are bridgeheads of the Communists for their gigantic Silk Road project (One Belt, One Road – OBOR). President Xi Jinping is building a new world order (Pax Sinica) over four continents for five billion people, which he intends to lead as from 2025. To this end, he is controlling states in Africa, Central Asia, Eastern Europe through investments and buying high-tech companies here (such as Kuka, Kion, Daimler).^[6] – What are we going to do business with when the precious gems are gone?

3.2 Rule of law (Rechtsstaatlichkeit) and Realpolitik

The burning question is: According to what rules should business be done? – This is the core question in the new order of the world, which will, of course, also bring along with it a new legal order: an international order of assets for participation in prosperity (C. Luttermann 2015: 31–48). Language is formative in this context. It is crucial who sets the standards, technologically as well as ideologically. When China’s President Xi, enthroned for life, talks about “rule of law”, he in fact means that what is to be world standard is his Chinese brand of socialism: the so-called “socialist rule of law”.^[7]

In this way, China has been active also here in the European Union since 2012 with its “Cooperation between China and Central and Eastern European Countries” (China-CEEC – the so-called “16 + 1” initiative). This is comprised of Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Croatia, Bulgaria and Romania, that is, 11 Member States of the European Union, all of them avid net recipients of Union resources. They are receiving loans from China, too, for infrastructure projects and have already blocked off Union criticism of human rights violations in China. The Süddeutsche Zeitung (Brössler 2017)^[8] ran the headline: “China is bringing Eastern Europe to heel.” China, at the same time, is sealing off its own markets against foreign investors while globally establishing its currency (Yuan) and its financial and technical standards (e.g. Gold Trade Notes; cf. C. Luttermann 2017c: 255–263).

The European Union Chamber of Commerce in China emphasizes that it is “imperative that the EU begins to seriously consider not only how it can protect its common market from the distortions emanating from China and the BRI [Belt and Road Initiative], but also how to address competition in third country markets”. In BRI projects, European companies are only used in a “filling-the-gap-role” – “very similar to European companies’ participation in China’s market in general”. The conclusion of the Chamber: “If the EU fails to play an active and competitive role, there is a real danger that it could eventually become little more than a peripheral market tacked on to the end of Eurasia.” (EU Chamber of Commerce in China 2020: 2 and 3). The Chinese state and its companies form a “closed value cycle” internationally (Wuttke 2020). Werner Hoyer (2021), President of the European Investment Bank, warns of Europe’s economic and strategic loss of importance. Europe is losing ground and its future.

The USA understands that it is all about a new world order. “America first” is true for every U.S. President, not only for Donald Trump. America, Henry Kissinger wrote early on about Realpolitik, has no permanent friends or foes, only interests. Manifold players act also in Europe, e.g., through manipulation of opinion and electoral corruptions via the Internet. This is conducted medially through language. Terms and concepts are occupied, distorted, reinterpreted and consent is created. We can see this as a wide-spread political program with “alternative facts” and “fake news”: We are experiencing the language of power and the power of language.

4.1 On the whole picture (Pax Americana)

Where is Europe? – The European Union is exhausting itself in an enduring debt crisis, disorderly poverty migration, unsolved environmental problems, mass unemployment in particular among the youth (Greece, Spain, Italy, Croatia, Cyprus, France, Portugal),^[9] the effects of the exit of the United Kingdom (Brexit). Here also, language is crucial. Irrespective of legal requirements the European Union is largely monolingual: In the organs and institutions of the Union (e.g. Commission, Council, ECB; cf. Pingel 2017: 658–660), roughly more than 80 percent of the communicative field is characterized by English language practice. Only the European Court of Justice in Luxembourg has a francophone-shaped tradition and practice.

Other languages play a marginal role – even German, which is the language with by far the largest number of native speakers in the Union. The phenomenon of anglophonization is having a particularly strong effect, as globalization has for generations been Anglo-American (Pax Americana). Through this, the economization of all life circumstances has spread widely around the globe; structurally via the financial and capital markets, also with the monetary and currency practice of the central banks (Fed, ECB). For decades, the Anglo-American business policy of the (de-)regulation à la “Wall Street” and “City of London” has been established in the European single market: a catastrophic economy of private interests, manipulation and greed (C. Luttermann 2017a: 431–475 and 2015: 31–48). With their “Sprachhoheit” (language sovereignty), the USA have exported their legal ideas and concepts (Großfeld 2019: 29). There is a lack of legal comparison: “The comparative lawyer might gain the chance to present practical results, not just transplants, but new ideas and wider exposure” (Großfeld 2000: 31). What is required is a European law (Pax Europaea) – established multilingually through legal comparison in the system of the reference (European Reference Language System).

We are apparently experiencing that since the fall of the investment bank Lehman Brothers (2008) with huge bailout packages, zero and negative interest (so-called “quantitative easing”) to the detriment of the taxpayers and savers:^[10] Private speculation losses are socialized. – Language is a powerful control instrument for capital flow worldwide and for well-being. Who shapes the field? – Is it just about money (cf. More 1516: 95)? Our values (articles 2, 3 TEU) and our community oscillate between “unity and diversity” (Le Goff 1994: 58–59). Language works here in a fundamental way, politically instrumentalised without people actually being aware of it: Legislation and practice are the source of injustice and the decline of our legal order (community).

4.2 Information age: the example of corporate disclosure

I will show this with the example of corporate disclosure (accounting, auditing). This is the instrument of information when dealing with other people’s money, i.e., it is fundamental for financing, valuating and the existence of any corporation (cf. C. Luttermann 2000). The lack of this instrument lies at the heart of the global debt crisis. This affects each and every one of the millions of corporations (articles 49, 54 TFEU), which are the core of European economic strength and prosperity. Here, legal comparison shows – as demanded by rule-of-law – the crucial meaning, which cannot be derived from one language (English) alone.

German, Europe-regulated accounting law demands that the legal representatives of the corporation (chairperson, chief executive) are to present “a picture representing the factual circumstances” regarding assets, financing and revenue in the annual financial report (§ 264 Section 2 sentence 1 Handelsgesetzbuch/HGB – Commercial Law Book, permanent jurisprudence since: ECJ, C-234/94, Tomberger – DE, ECLI:EU:C:1996:252). This general norm is taken literally from the German version of the European financial reporting directive.^[11] It is meant to guarantee comparable and equivalent information for the protection of shareholders and third parties, as corporations operate in more than one Member State and provide no securities for third parties apart from their net assets.^[12]

4.3 Variations in member states

Information is conveyed through language (C. Luttermann 2003: 276). In the European Union, the requirements are authentically set in 24 official languages (treaty languages – Vertragssprachen; article 55 TEU, article 342 TFEU). However, the transformation of the European directive varies: In also German-speaking Austria, the annual financial report is to “present a picture of the assets, financing and revenues of the company that is as true as possible” (§ 222 section 2 sentence 1 Unternehmensgesetz). This obviously does not mean exactly the same as “a picture representing the actual circumstances”; rather, according to the Austrian government, it is seen as a translation equivalent of the “internationally common term ‘true and fair view’” (C. Luttermann 2000: 177–181).

This is also the wording of the English version of the European directives (“a true and fair view”), whereas Dutch requires “een getrouw beeld”. The Dutch transformation law includes the reader in a decisive way: He is to be enabled to make a responsible judgement on the basis of the insight given in the annual financial report (article 2:362 I 1 Burgerlijk Wetboek; cf. C. Luttermann 2003: 775–776). This shifts the weights: In the Netherlands (and Austria), it is only the “true and fair view” that is the liability standard.

4.4 Ratio legis and legal practice

In Germany, liability is tied to “ein den tatsächlichen Verhältnissen entsprechendes Bild” (§ 322 section 1 sentence 3 Handelsgesetzbuch: “a picture representing the actual circumstances”). Similar to Italian (“verietta e corretta”), this is legally sharp wording for a court inquiry: Facts are processes in the present and the past that are open to proof; what is demanded is thus complete verifiability of the information. This limits the consideration of future events, which are included to enhance the value of a company through prognostications (so-called Caution principle; cf. C. Luttermann 2017b: 618–624). The European Court of Justice, using German as a court language, speaks of the “Grundsatz der Bilanzwahrheit” (commandment of truth; C. Luttermann 2003: 787–795).^[13]

In contrast, Anglo-American accounting practice, under the term of a “true and fair view”, makes use of massive valuation scopes with attributed time values (so-called ‘fair value/shareholder value’). These present the company as being far more “valuable” through arbitrary expectations, wrapped up in mathematically “exact” models, equations and numbers (fundamentally Luttermann 1999a). Such widely manipulated figures fire the debt crisis we are experiencing with the zero/negative interest policy of the ECB and its “quantitative easing” (C. Luttermann 2017a: 431–475).

5.1 Starting point

So this is what the examples say about the language regime in the European Union – and its reform: The regulation (valuation) of life facts (here: assets, whole companies) may depend on individual words and phrases in the legal texts, in particular on their translations (Luttermann 1999b; Pescatore 1998: 1). The legal foundations therefore do not provide a constitutional standard, but rather degenerate into quarries of arbitrariness. In this way, valuations and whole legal concepts may be warped. Legal policy thus changes European law tacitly in the process of transformation, implementation and practice.

Here as in practically all areas of life, we are dealing with remarkable values in individual cases, with markets worth billions (business models) and with rule-of-law in general. For market players make use of such legal difference between Member States in the single market. Specialists search for the most suitable version for the legal choice (so-called “forum shopping”) within the 24 language versions of a European legal act, all considered to be “authentic”. This means that one of the language versions practically has a decisive effect (so-called “language shopping”).

5.2 ECJ (legal-language comparison) and legal unity

To achieve legal unity (article 19 section 1 sentence 2 TEU), the European Court of Justice (ECJ) has made the fundamental ruling that there should be legal-language comparison (C. Luttermann 1998: 264). This means that theoretically all language versions are to be systematically compared as a whole not only at the textual surface (wording), but also in content (concept) at an intercultural level. However, this does not in fact take place, with, at the most, some few language versions being compared. In any case, the effort until a decision has been made is great (in accounting law it is actually little more than a handful). At the Court of Justice, where, by the way, there is an arbitrary dominance of French, the only version of the decision that is regarded as binding is the one in the language of the case, arbitrarily chosen by the plaintiff (articles 36, 37 Rules of Court ECJ; K. Luttermann 2007, 2017). This means that unified legal regulations for competition in the single market are lacking.

The citizen bears the litigation risk (Prozessrisiko), i.e. the linguistic risk (Sprachenrisiko). In practice, this means: the Union citizens are expected, in actual fact and legally, to not only consider a legal norm in the official version in their native language, but also to deal with it in foreign language versions and make comparisons.^[14] The European Court of Justice occasionally refutes the legal interpretation of those trusting only in the version published in their own mother tongue. Rather, it regards it as the citizens’ duty to critically compare the versions in other languages. This is a conception that is far from reality; if surveys such as Euro-Barometer or Eurostat are taken as a measure, the number of foreign languages citizens are familiar with decreased from 2007 to 2016, with 35.4% of Union citizens having no command a foreign language in addition to their native one.^[15] – The judges are demanding something they themselves probably cannot usually fulfill.

5.3 Provisional résumé

The rule of law is based on clear rules (determinacy): Legal terms separate arbitrariness from the law; and where the law ends, arbitrariness (tyranny) begins, as we have shown. Let us remember that language and translation are mighty control instruments. As described above, the presentation of corporations (disclosure) is crucial for decisions about the investment of billions of euros. Language, therefore, directs capital flow around the globe: Wherever the capital flows to, innovation, employment and prosperity blossom! This shows that the language regime with 24 official and treaty languages (= 552 language combinations; cf. K. Luttermann 2011: 53–54) regarded as authentic, but in fact being very different, has long been overchallenged. The legal precept, “the texts in each of these languages being equally authentic” (article 55 section 1 TUE), in fact seems like a fiction. This demands some rethinking and the reform of the language regime. The European Reference Language System (see in the following Section B) provides a basic order that has its foundation in interculturality and in the rule of law (Rechtsstaatlichkeit).

7.1 Status quo

The United Kingdom joined the European Community in 1973. This meant that English – beside German, French, Italian, Dutch and Danish – became an official language and was able to expand its position more and more. The Dutch sociologist (De Swaan 2001: 144) prognosticated that English would gain importance the more languages came into the Union. This has been confirmed in the Union’s growing process. In the EU institutions, English prevails over all other official languages, as shown above. From the point of view of the rule-of-law, this is a questionable process. Even at the European Court of Justice, which traditionally uses French – monolingually, English is gaining ground; even in consultations of the judges for reaching a verdict. For among judges, knowledge of English is also better than that of French (cf. Levits 2007: 46; K. Luttermann 2013: 115).

Fixing on a unitary language (lingua franca) “English” as a so-called “universal language” may – in the short term – seem favourable for communication in the European Union. Costs for translation, in particular the internal expenditure, could decrease considerably. – However, is there not more at stake? – The process of ousting the other languages would become unstoppable. It has been pointed out as a danger that the official European languages may in the long run fade into socially and functionally restricted regional languages below the level of dominant English or might even become extinct (cf. Stickel 2008: 87). The European Union is a supranational union of many Member States. It lives and flourishes as an intercultural community building on multilingualism in democracy and rule-of-law.

7.2 Quo vadis?

Reducing communication to one language does not do justice to the multilingual approach and the cultural diversity of the Union. English as “universal language” undermines European cultural diversity, in particular Continental legal tradition (so-called statute law), the – necessary – counterpart to the Anglo-American culture (so-called common law). The European legal terminology would hardly differ any more from Anglo-American terminologies, legal thinking and concepts. The spirit and practice of fiscal one-sidedness (neoliberalism) could triumph further, marked by Casino Wall Street and City of London: “a place whose inhabitants speak an unintelligible tongue, practice mysterious customs and worship a God called money” (Roberts and Kynaston 2001: ix).

A world that seems global (Pax Americana). A world in which trust as personal responsibility is lacking (cf. C. Luttermann 2017a: 431–475). – Our common European values and goals, rooted in European law (articles 2 and 3 TEU): Where are they? – No, it is not just about “words, words, words” (Shakespeare, Hamlet). Using a common medium like global English may work in the field of natural sciences, in technology and engineering, but where values, attitudes, convictions or beliefs are concerned, it is more a hindrance than a help (Bliesener 2003: 77–78). With “English only”, the world would be perceived in a strictly monosemantic way. Institutional multilingualism promotes diversity in thinking and contributes to the creation of a European (legal) identity (cf. K. Luttermann 2014: 79–80): for the legal security and prosperity of the people in Europe.

This is the background from which the following guiding questions emerge: In what way can multilingual legal communication in the EU institutions be made clear and legally certain, without abandoning the claim to linguistic plurality? Is it possible to reconcile multilingualism with the goal of making communication in European Union law as certain as possible? This is predominantly a task for European legal linguists (cf. K. Luttermann 2014: 80–81).

8.1 Legal equality through language law (Pax Europaea)

What is required is a sensible language law: This needs to preserve legal unity, human equality and cultural diversity within the European Union as a legal community. The European Reference Language System forms the basis for this (see Figure 1 below and Luttermann and Luttermann 2020): as an intercultural legal-linguistic communication system for the European Union, which is a multilingual confederation of states, securing uniform legislation, translation and control of implementation in European law.

Figure 1:

The European reference language system.

In contrast to other suggested reforms, the European Reference Language System does not entail a reduction to one or several treaty languages (article 55 TEU). Rather, from among all treaty languages, it forms a communicating system with European reference languages (Referenzsprachen) and Member State official languages (Amtssprachen). In respecting these, the citizens of the Union can understand and make use of their rights and obligations largely in their native language. That means that the Member States are strengthened (article 5 TEU; see in Section 3.). In principle, neither the concept nor the cultural content of just one language are prioritised (as has hitherto been the case with English) – practically hegemonially – for legislation. What counts are the reference languages, between which legislation takes place in an original manner, i.e., has to be negotiated in an intercultural dialogue. This can prevent one-sidedness as far as possible, the more so as in the reference language system, all official languages are included (multilingualism).

In this way, a truly European law can be established (Pax Europaea). This is essential in view of the global changes, in which our humanistic values (articles 2 to 6 TEU) are eroding. It has been said pragmatically: “Doing justice to the multilingualism of the EU does not mean that one must do justice to all languages under all circumstances” (van Els 2005: 278). The task is to adequately balance the coexistence and cooperation of the European languages (cf. K. Luttermann 2013: 119). They are engaged in a dialogic exchange for negotiating the law. This process, forming the language-cultural dialogue in the Union and its legal cultures, must lead to clear results: legal norms. The European Reference Language System aims at this: It is the only model to proceed from a legal-linguistic basis, aiming at legal certainty and clarity (Luttermann and Luttermann 2019).

8.2 European reference languages

The starting point are two reference languages on the Union level. A legal act must be devised in the two reference languages by jurists, linguists and translators. In this context, the legal and linguistic issues must be answered comprehensively by comparison between the two reference languages, in order to establish legal security and authoritativeness for the Union. This procedure not only enables, but from the outset in fact requires translation (from Latin translatio), i.e., figuratively carrying content from one language over to another. What is necessary is multidimensional thinking, by examining our own linguistic patterns (templates – Weltsicht), in order to be able to grasp the issue at hand and come to a decision.

Methodologically, this is legal-language comparison (Rechtssprachenvergleich) as a tool for intercultural understanding and communication. The reference languages have equal authoritativeness: They are authentic and legally binding and express the joint law in a uniform way. They stand out supranationally from the circle of treaty and official languages, without at the same time marking out one language hegemonially. Legal and linguistic questions in interpreting European law have to be solved comparatively between the two reference languages in a legally binding way for the whole Union.

8.3 Subsidiarity: dependence and citizen orientation

This does not mean that those official languages of the Member States that are not reference languages are superfluous or simply – as in other reform models – excluded. Rather, they systematically extend referential bilingualism: Each Member State of the Union is responsible for translating the European legal texts drawn up in the reference languages into their own, i.e. their official national language (native language) for their citizens in a legally binding and comprehensible way (K. Luttermann 2017: 503). This enhances the affinity of Europe to its citizens as well as the responsibility of the Member States in the sense of the principle of subsidiarity, which is in fact required by European law (article 5 TEU).

For language use in the domain of regulation this means: Translation is only allowed from the reference languages into the native languages, not vice versa. In this way, the non-reference language versions, being in agreement with the reference languages, can be regarded as authentic. This is guaranteed by a second level of control that is close to the citizens and works systematically, with feedback and checking for necessary corrections at the European level. The reference languages (at the supranational level) and the reference and native languages (in relation to the Member States) complement each other reciprocally for legal security and transparency.

This solves the complex language situation of the Union: All its languages are involved, greatly reducing the danger of divergences (Engberg 2009: 190; Schübel-Pfister 2007: 169). The translation service of the European Union can be developed into a competence center, to be employed for the organs of the Union and of Member States in questions of translation and interpretation right up to the European Court of Justice, which is the final decision maker regarding any remaining cases of doubt (article 19 section 1 sentence 2 TEU).

8.4 Multiperspectivity instead of monoculture

This system of reference and native languages avoids the monoculture in thought and action so long prevalent in the Union through the stifling, non-legitimized dominance of English. We should remember that text production and text reception in the Union require multiperspectivity (translation). The manifoldness of structural and semantic-conceptual influences from languages and legal cultures enriches life circumstances. This sets the standard methodologically for the necessary legal unity (legal protection) as a whole and curbs one-sided legal policy.

With the Reference Language System, the fundamental idea of multilingualism in the European Union can be implemented, secured by rule-of-law (Rechtsstaatlichkeit) and pragmatically efficient. European law can thus take effect in the single market in the native languages – not by itself, but sensibly secured by rule-of-law (see in Section 6.2) through the equally authoritative reference languages. The necessary multicultural discourse may promote further development.

9.1 The principle of democracy

The European Reference Language System determines the reference languages according to the democratic majority principle. The European Court of Justice generally considers the approach of limiting the choice of languages to the “best-known” Union languages as “appropriate and suitable” (ECJ, C-361/01 P, Kik – NL, n. 94, ECLI:EU:C:2003:434). The languages with the largest number of native and foreign language speakers are English (before Brexit) and German, which has by far the greatest number of mother tongue speakers. After Brexit, German is now also in front overall, taking native speakers and foreign language speakers together; in the category of native language speakers it is followed by Italian and French with nearly equal numbers, with French, however, having more foreign language speakers.^[17] The reference languages are thus German and probably overall also French.

9.2 The principle of the rule-of-law (Brussels and Brexit)

The European Reference Language System strengthens the Member States and their citizens, as shown. Special attention should be paid to the principles demanded by European law, i.e. the rule-of-law (article 2 TEU) and subsidiarity (article 5 TEU). Both are linked to each other – also through language: In the principle of subsidiarity, the Member States devolve only a section of their national sovereignty in a limited way to the competence of the supranational Union (cf. article 4 section 1 TEU, articles 2 to 6 TFEU).^[18]

Consequently, the European Union (“Brussels”) cannot seize further power (so-called “competence-competence”, article 5 TEU) for itself – which is what centralism unfortunately tends to do. Practically, the delimitation, i.e., the determination of the extent of competence transfer, in general as well as in specific cases, depends on language and translation (clarity of norms). That is the constitutional basis of our – federally (German föderal!)^[19] organized – European Union. In the timeless words of (Locke 1689: Chap. XVIII, Sec. 202) “Where-ever law ends, tyranny begins”.

This also includes the following: English, since the accession of the United Kingdom in 1973 a treaty language of the European Union according to article 55 TEU (actus primus), has consequently lost this status through the United Kingdom’s exit (Brexit) as a member state from the Union (actus contrarius). EU Regulation 1/1958 has to be amended (Font-Mas 2020: 63–64). No other member state represents the English language post Brexit – neither in the legal nor in the majority sense: Ireland, with approx. five million native speakers, brought Irish (Gaelic) into the Union, Malta, with around 500,000 native speakers, chose Maltese as treaty language. English within the Union seems like a homeless fellow (Eurospeak, Pidgin English), the language of a now foreign power (Drittstaat).

9.3 Education and integration through language culture

Within the federal organization of the Union, there are some rules for the protection of one’s own culture and language, such as in France (e.g. Loi Toubon), which has traditionally defied anglophonisation. The latter seems out of place, especially after Brexit, English now only representing a minority of native language speakers and its treaty language status lost. Practised reasonably, this may promote our community. The core element is the domain of education.

Italy’s constitutional court backs up university lecturers against English exorbitance. Some of them had gone to court against an obligation to teach their courses in English. The highest judges in Italy ruled in their favour: Languages other than the “unica lingua ufficiale” are not allowed to be given the status of an alternative to the Italian language; the obligation to teach in a language other than the mother tongue (lingua materna) impedes the freedom of disseminating the contents of one’s thoughts in the best possible way (Corte Costituzionale, Sentenza 42/2017, 21.2.2017, Gazzetta Ufficiale 01/03/2017 n. 9, ECLI:IT:COST:2017:42). This shows not narrow-minded nationalism, but rather reasonable practice. The parliament of the Netherlands also stopped English excess at the universities in favour of the Dutch language and culture (Wet taal en toegankelijkheid, 35.282).

Institutionally as well as economically, Europe lives through this diversity. The German Constitutional Court has confirmed the German identity (budget sovereignty of the Bundestag etc.) and on the collaboration towards European integration on the treaty of Lissabon it ruled: In Germany, there must be sufficient space for the political organization of life, which is particularly dependent on “cultural, historical and linguistic pre-knowledge” through the command over the language and the control of the educational systems; democratic self-determination, according to the court, is built on realizing one’s full potential in one’s own cultural space. The constitutional judges see the German language in general as indispensable for democratic participation in the process of European integration (BVerfG, 2 BvE 2/08, BVerfGE 123, 267, n. 249).

10.1 Legal linguistics as a discipline

This sovereign basis of the Member States constitutionally limits and controls integration in the sense of subsidiarity (article 5 TEU). It characterizes European unity in diversity for the European Union as the guiding principle of the legal community. What is needed for its implementation is reasonable, clear law and exact translation (European law). Basically, the question for the Union – as for any community in liberty – is the “true purpose of man”: the comprehensive shaping of his abilities (von Humboldt 1792: Chap. II.; Mill 1859: Chap. I.). This is transmitted through language. The basis for democratic participation and control is comprehensibility.

The rule-of-law state begins with clear legislation and ends where this is not given. It is about justice, citizen communication and integration, about clear language for general well-being. This is the area of legal linguistics (Rechtslinguistik, see Figure 2 below) as a discipline. It has to be designed and developed comprehensively. In multilingual as in monolingual contexts, this involves linguists and jurists as well as other specialists together exploring the framework for legal clarity in a multi-perspective way: i.e. formulating the law correctly and specifically, so that communication may be successful and the rule of law is maintained. Legal linguistics operates humanistically, interdisciplinarily, interculturally, contrastively and open to such clarity (legal security). To this end, we have formulated conceptional foundations and perspectives (Luttermann and Luttermann 2020: 201–233).

Figure 2:

Legal linguistics (Rechtslinguistik).

The European Reference Language System can therefore establish a – digitally supported – legal-linguistic mode of communication for the people and institutions of our polylingual confederation of states: a system which provides European law in legislation, translation and implementation control – with the necessary sense and within the limits outlined. This involves manifold tasks, research questions and chances. However, regrettably, Germany still does not have even a single chair for legal linguistics. Are the peaceful community and the well-being of speaking people not worth greater effort?

10.2 Interdisciplinarity

Legal linguistics (Rechtslinguistik) needs to be developed interdisciplinarily and interculturally as a discipline. In the European Union, dealing with multilingualism is a practical necessity, as has been shown. In this context, it is indisputable that “the process of creating an ever closer union among the peoples of Europe” (Preamble section 14 TUE) has to be designed legally and thereby also linguistically. It is about a suitable legal order of the multilingual community as an order of assets (Vermögensordnung). This means that language law is of decisive importance for sustainably establishing rule-of-law order and prosperity. Legal linguistics, as a form of cultural linguistics (cf. Kuße 2012: 185–186) and also in a more general framework, is potentially a fundamental science for our community. Law and language provide an interdisciplinary opportunity for research, teaching and practice.

Linguistic and legal categories educate in a holistic way: They co-operate functionally with the means of translation for understandable, clear communication, in order to establish a unified European law (rule-of-law – Rechtsstaatlichkeit) for the Union citizens as a legal community in the internal market. This is the actual task, which only becomes clear and interdisciplinarily solvable in a synoptic view, as shown here with the help of the reference languages (Referenzsprachen). The European Reference Language System does not, as is usually the case, reduce linguistic diversity in the European Union in a unilaterally monolingual or selective way. The official languages (Vertragssprachen) of all Member States are involved in the – necessary – intercultural legal discourse. This empowers them and their citizens in the sense of the subsidiarity required by European law (article 5 TEU), i.e. the mainly native-language dialogue.

What is required is an institutional language regime for a sensible solution to the language question (cf. Limbach 2010: 316). At the moment, tiresome practice shows: Jurists and linguists each develop monolingual or selective language models for themselves and stick only to their own discipline. The European Reference Language System has a holistic design: It combines legal and linguistic basic knowledge for intelligibility, legal language comparison and legally secure communication, in order for people to be able to trust the version in their own language, because European law serves justice everywhere in an equally rule-of-law authentic way. The reference-native language solution thus avoids linguistic monoculture right from the outset – all languages remain involved and alive.

10.3 Legal certainty through clarity

Legal certainty should not have feet of clay. For a claim to rule-of-law and peace under the law do not tolerate arbitrariness (cf. C. Luttermann 2007: 18). This is the motivation behind the reordering of the language regime. Accompanying questions of multilingual text production and text reception are rooted in the criticism of norm setting and interpretation in European law. The European Union, it is said, is standing at a “language brink” – in conjunction with an “economic collapse” (Weber 2010: 327). Eurobabble or Eurospeak, idiosyncratic and wrong language use, overlong sentence constructions and a high density of cross-references are regarded as demanding too much of the addressees and making access to legal texts too difficult: Jurists and legal lay persons are often prevented from coming to an understanding about the content and grasping the meaning (cf. Luttermann and Luttermann 2020: 212–213).

According to the principle of legal certainty (Bestimmtheitsgebot), a regulation has to be clear and unambiguous, so that the addressee may recognize his rights and duties. This principle, of course, also holds – in particular as constant jurisdiction – in European law, without actually being explicitly fixed in a treaty text. This underlines the necessity of legal linguistics as a discipline with legal language comparison for reasonable standardization overall. As an example from European law, one may look at the regulation on key information documents for investment products in consumer protection.

10.4 Sustainable finance: key information documents

Basically, the issue is sustainability. With the „Green Deal“ of the European Union, the ecological transformation of the internal market, this marks a paradigm shift for economy and society.^[20] Investment products (investment fonds, life insurances, securities) are important for many millions of people in private old-age provision. The products are complex and difficult to understand for so-called small investors, i.e., non-professional clients, such as banks or insurances. People (small investors) are to be protected from risks and abuse through information. The small investor is to be capable of understanding “the key information document on its own without referring to other non-marketing information” (Regulation PRIIPs 13. recital).^[21] This key information document must be available in all official languages.

Uniform key information demands the comparison of the different language versions. However, the regulators in Brussels already trigger language questions on a supranational level: In the German version, the general norm demands (Regulation PRIIPs article 6) that the information document must be präzise (‘precise’), redlich (‘honest’) and klar (‘clear’). In the German recital, however, it says richtig (‘right’), redlich (‘honest’) and klar (‘clear’) (Reg PRIIPs 13. recital). Präzise and richtig are no synonyms. Is this an error in translation? – According to the communicative function of the regulation to inform the small investor truthfully about facts, it is the lexeme richtig that would be expedient. The information in the key information document must not contain any errors or contradictions, no wrong details deceiving or misleading the investor. The Dutch language version confirms this with juist (fehlerfrei, korrekt). The English version also follows this line with accurate. Thus, in German the version in the recital (instead of the general norm) would be functionally adequate and is therefore to be preferred, according to which the key information must be richtig, redlich and klar. However, the Spanish and French versions use the expressions exacto or exact, which are closer to German präzise, indicating that exact and complete (i.e. no vague) information is to be given.

Note: We are not dealing with sophistry in language here. In practice, substantial liability risks of product suppliers and at the same time the protective effect for the small investor and his old age provision depend on language. What should also be remarked: The regulation always uses the term ‘consumer’ (Verbraucher) instead of ‘small investor’ (Kleinanleger). This is confusing, as in economic law, these lexemes are not synonymous, but rather indicate characteristics. A consumer (Verbraucher) is explicitly a person that consumes something. He spends money. An investor (Anleger), on the other hand, invests money in a planned way. By buying an investment product, he is proverbially ‘saving for a rainy day‘. Is that not what the legislator is aiming at? Why does he not say so explicitly? – Legislature itself fixes „sustainability“ for environmental protection as the core of all business activity, intending explicitly to establish a system of criteria of disclosure (“technical screening criteria”) to investors that “is clear and not misleading”.^[22]

This much is clear: Uniform, rule-of-law communication depends on legal language comparison. Where linguistic precision is lacking in legislation (norm setting), this task is shifted to jurisdiction in a way that is questionable (division of powers!); at the same time, the accompanying language risk shifts procedurally to the citizens. The European Court of Justice may interpret an ambivalent version – chosen for solving problems in negotiating the norm – narrowly^[23] or even decide against the grammatical system of an individual language, in order to preserve legal uniformity. In both cases, the lack of clarity is to the disadvantage of the citizens.

What is also clear: This may be avoided from a legal-linguistic point of view. The European Reference Language System is designed for this purpose and provides systematic-methodological support in particular in a multilingual context. The source text is to be clearly formulated in the reference languages, so that semantic deviations and sources of error are banned as far as possible in the translation into the official languages of the Member States.

10.5 Interculturality and legal-language comparison

Legal linguists study the cultural boundedness of language and law (in a European as well as in a national and international context), that is, conveying the law in an interlingual dimension (relation of reference and official languages) and an intralingual dimension (relation of legal and everyday language). This is the task of legal linguistics – in the European Union given by multilingualism – for reaching a uniform and legally certain understanding. European law as such has to be negotiated, expressed, integrated into the national legal orders and transmitted in different languages through cultural comparison. Legal comparison (Rechtsvergleichung) therefore manifests itself also as linguistic comparison (legal-language comparison).

This is a complex communication task. The issue is no longer merely the comparison of different language cultures regarding their linguistic conventions and text types, but also discourse sensitivity of language in use and intelligible translation (cf. Cosmai 2019: 78; Kuße 2012: 16; K. Luttermann 2011: 25). Language and the law work together in a holistic way. The law requires clear language for communication. It is necessary to grasp the sense and transmit it. This is what a legal community (Rechtsgemeinschaft) is built on at the micro-level and the macro-level – also and in particular for diversity in unity. The interest of legal linguistics is clearly on the side of language use. This does not, however, exclude the specific characteristics that language may differ in. These are highlighted in comparison.

In the multilingual elaboration of legal texts, systematic differences also have to be taken into regard. If this is neglected, where norm texts of the Union are usually not drafted by native speakers (Commission, Court of Justice etc.), this promotes errors (interferences): In German and French, for example, the category of grammatical gender still exists, in contrast to English, which has lost it. Punctuation and grammatical case also bear meaning and may lead to semantic differences. Therefore, the source text has to meet high demands. The clearer the formulation of the source text is, and the more the genesis of the norm (drafts, consultation transcripts) is made transparent, the better the conditions are for communication to work.

10.6 Translation process and legal linguistics

European law depends on translation. The core problem in the translation process is guaranteeing conceptual agreement for legal uniformity – not just on the lexical surface. Contentual convergence is not only provided through production-related comprehensibility (text), but crucially also through reception-related understandability (recipient horizon). The way the translator understands the text from which he is to translate into another language, and what kind of factual knowledge he has, makes an impact on the translation work: Translation as understanding and reformulation of a text content requires relevant cultural, specialist and linguistic pre-knowledge.

The role of pre-knowledge is not being sufficiently reflected on in the present language regime of the Union as well as in the traditional language models. However, words have meaning in the light of the pre-knowledge about their use (cf. Stolze 2019: 232). – But who finally takes control? – In any case, linguistic and extralinguistic factors influence adequate language use and translation. For the Reference Language System this means: In co-editing, European law is to be fixed comparatively in the reference languages. Legal experts and specialists co-operate with linguists and translators right from the outset. The legal experts contribute ideas on content in their native language, by which European law evolves through the interaction of different legal traditions.

Institutional multilingualism enriches legal communication in an essential way. It guarantees the implementation of the diversity of legal cultures in European law, which may thus always also be regarded as one’s own law. Contradictions between the reference languages have to be excluded. There must be clarity in language. To this end, content knowledge and linguistic knowledge need to be connected. To such an extent, translators are good ferrymen, trans-ferring us from the familiar bank of our language (culture) to the bank of another language (culture) in a legal-linguistically certain way (and vice versa; cf. Luttermann 1999c: 771). Legal linguistics is the source of peace and prosperity.

11.1 European awakening and legal domain

We have to build a new Europe, a new European Union as unity in diversity. This is required by reason. Legally, it is the European treaties (TEU, TFEU) that oblige us to do this in the spirit of the Roman peace project since 1957 as a community of law. Even though it may be painful that the citizens and institutions of the United Kingdom will not participate in this project in the Union, the legal situation is clear: English is no longer a treaty language of the Union due to Brexit – as shown (see Section 7.2) –, but in particular the language of a foreign power.

Its overwhelming dominance, in particular the institutional monolingualism in the European Union, is constitutionally and not least democratically inacceptable. The more so, as English – or what counts as such – is the gateway and catalyst for Anglo-American hegemony (Pax Americana). The influence is especially strong – as mentioned - globally through patterns and methods of the monetary markets as well as the financial and capital markets of the economy of catastrophe (Katastrophenwirtschaft). Joseph Stiglitz (2010: 109–183) describes “the great American robbery”.^[24] This still continues (C. Luttermann 2017a). The concept of the law, on which alone the American Revolution was to found the state, is fading. Is it not time and legally required for emancipation in the sense of Realpolitik?

In English, Brexit continues an old story. That of the language of globalization (McCrum 2010), that of America and the Americans (American English). The prophecy of John Adams (1854: 510), second President of the US: “England will never have any more honour, excepting now and then that of imitating the Americans.” The BBC gives a title to the remorseless colonization: “How Americanisms are killing the English language” – all-encompassing, without control.^[25] Selling one’s soul? – The future belongs to the responsible community. For the European Union, a new story begins with Brexit, possibly its last chance.

11.2 European identity and the principle of subsidiarity

It is not until we secure our spiritual freedom, dedicated to the truth, that there will be a new beginning: the discussion of the new world order, “of the greatest questions which can occupy humanity” (Mill 1859: 61–64). The legal order with its language question is an elementary part of this. Basically, the issue globally is an appropriate order of assets (Vermögensordnung) – instead of one-sided private business models through a regulatory world monopoly such as the “International Financial Reporting Standards” (IFRS by the IASB, London; C. Luttermann 2015; cf. Sunder 2011). Globally, this is the question of war or peace, demanding a new balance of power. Geopolitically located between two power centers operating egocentrically, it is precisely European ‘unity in diversity’ that can mediate.

Our common values provide the measure, in particular human dignity, freedom, pluralism, the rule of law, protection and improvement of the quality of the environment, and a highly competitive social market economy (articles 2 and 3 TEU). This forms a sustainable basis for a community designated as the European public interest. Is this compatible with the deregulated ‘economy of catastrophe’ consisting in so-called “fair value” (= shareholder value) and trillions of debt burden (leveraging) taking hold of private persons and states: the game bringing wealth to some few through the masses (taxpayers, savers), where gains are privatised, losses socialised. – Is this to be Europe’s identity and future? – The necessary unity of freedom and responsibility has been torn apart.^[26]

The yardstick is: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality” (article 5 section 1 TEU). Subsidiarity is lived solidarity and the power of a federally (German föderal) organized community (not a “federal Caesar” like in the USA). A federation of free citizens and sovereign states. From this comes strength that is friendly towards Europe and promotes integration without self-abandonment. Constitutionally, clear guidelines are required against arbitrariness (centralism) and for our well-being in freedom – that also includes clear limitations for European law. This obviously depends on language and translation.

11.3 Reference language system: unity in diversity

We need sustainable development on a sustainable basis in the union (single market), a clear legal foundation. For where the law is uncertain, there is no rule of law (ubi jus incertum, ibi jus nullum), but tyranny (Locke, see in Section 9.2). The language question is a legal question under the rule of law (cf., e.g., Bingham 2010: 37–65). It must be answered for the European Union as a community of law, for the people in the single market, reasonably with the same measure. Monolingual and selective reform models ignore criteria that are significant for a community of law, specifically legal adaptability, references to practice and consequences: legal certainty.

The foundation is laid by the comprehensively designed European Reference Language Model. It is the only model to proceed from a legal-linguistic basis, providing a coherent, constitutionally ordered system of communication, taking into account the member state languages for the Union. In our constitution of liberty, the most important concepts are legal-language comparison (Rechtssprachenvergleich) as a method, the institutional principle of subsidiarity, the demand for legal clarity and the democratic majority principle. From this, the so-called reference languages (Referenzsprachen) evolve. They bear the burden one cannot wish upon any one language alone. This is illustrated by the countless non-native speaker learners of English, right up to Eurospeak (Pidgin English).^[27] Peculiarities and deficits of a language become particularly prominent in legal communication (cf., e.g., Triebel 2009). Every language is a world of its own.

Taking diversity into account in a reasonable way, as laid down in the Europäisches Referenzsprachensystem (European Reference Language System), bans monolingualism. It is our continent, as Boris Johnson emphasizes in his statement “for European culture and civilization of which we are a part.”^[28] This includes, as already described by Shakespeare in “The Merchant of Venice”, the tension between civil law and common law (Ackroyd 2006: 229–234). This promotes community, by all means competitively organized in liberty, justice, subsidiarity, uniting us against misanthropists. Europe cannot take the hegemony of one ideology, one country, one language. No free human being will tolerate being deprived of his language. This is why we systematically build on multilingualism.

11.4 Reception of the reference language system

The European Reference Language System has already been scientifically acknowledged. Its employment in the Union institutions has been suggested, as it “may account for the justified trust of Union citizens in their own language version better than traditional practice” (Schübel-Pfister 2007: 169). It is regarded as trustworthy and advantageous to align a native language text version with the versions in a few interpretive languages (cf. Lohse 2004: 106). The Reference Language System may contribute to greater legal certainty and harmonization in the European Union, helping to minimize the problems of a multilingual law. Institutional multilingualism is a concept for the future for legal linguistics, which should urgently be addressed, for vibrant solidarity and integration in Europe.

Konrad Adenauer made the following appeal: “The unity of Europe was a dream of a few. It became the hope of many. Today it is a necessity for us all.”^[29] This holds true over time. Can the Member States exist individually in the globalized world? – All the more urgently must a European Union be created that will establish the principles of democracy and equality in a citizen-oriented way, at the same time working efficiently, interdisciplinarily and interculturally. For it is only as a powerful unity that it can take effect geopolitically. In order to secure peace, freedom and wealth for the Union citizens, a fundamental language reform is required. This is what the European Reference Language System is intended for.

11.5 On a community of values and prosperity

Europe’s humanistic tradition, basis and future is our community of values (Wertegemeinschaft), the rule-of-law as the constitution of liberty. This bond (Band), in particular as a community of law in the European Union, unites and protects the people of Europe. Together with democracy and rule-of-law, this constitutes an inestimably valuable, but rather fragile construct. This is demonstrated even by a British Prime Minister with a majority in the House of Commons as a wrong-way driver: “Is Boris Johnson going to ask the Queen to break international law?” – this was a stunning headline for “a bill that his own ministers have had to admit could break international law”.^[30]

The issue is the Internal Market Bill,^[31] with the help of which Boris Johnson intends to prevent border controls between Northern Ireland and the rest of Great Britain after its exit from the Union. The mere intention of the Prime Minister to break the painfully negotiated Withdrawal Agreement with the European Union (Brexit) seems unbelievable. The renowned newspaper The Guardian put it in a nutshell under the heading Boris Johnson is trashing Britain’s reputation: “A Britain that declares its willingness to break international treaties – including one it signed only a few months ago – announces itself as a rogue state, by definition.”^[32] While this is true for anyone, it sounds peculiar if it comes from the same man who expects China to adhere to international law: “China is breaking Hong Kong treaty with UK”.^[33] Are different standards being applied? – In the House of Lords, the Peers voted by 433 votes to 165 to remove the section of the bill that would allow them to break international law.^[34]

Let us remember that language and practice are elementary for the law as a liberal order, in particular in their protective function against those acting against the law worldwide. For sustainable prosperity in Europe, a culture of responsibility is required in states and the Union, in the economy and in society, anchored with reason individually and established universally, in which the just combination of liberty and responsibility (liability) holds as a standard. In detail as well as on the whole, a social – not an Anglo-American “neoliberal” – market economy (articles 2 and 3 TEU). For law is practiced ethics, mediated through language: Where it is lacking, the law and legal order degenerate, and with them the economy and human community (Luttermann and Luttermann 2020: 11–16).