Formulation of rights and European legal discourse: any theory behind it?

AbstractEver since the very beginning of the European Economic Community, the EU has regulated European linguistic diversity through a policy of multilingualism (Art. 217 of the E.C. Treaty and Council Regulation No 1 April 15, 1958). Within this policy, the legislator introduced the right of EU citizens to communicate with the EU institutions in each one of the official languages. The possibility of multilingual communication with the EU institutions is not only a practical solution, but a real “core” right, recognized even in the Lisbon Treaty. In this framework, it is worth providing practical solutions as well as considering whether or not, the European Union is also favoring the enactment of rights at the European level, by formulating, enforcing and even communicating the same rule to all EU citizens, with the aid of a multilingual drafting. The EU legal terminology providing rights comes into being through specific mechanisms of lexical creation, which chiefly consist of coining semantic neologisms. Moreover, all legal texts must be written in accordance with EU drafting guidelines, prescribing that “rules have to be drafted bearing in mind their translation in all the official languages”. The consequence of these drafting techniques is that multilingualism influences not only the translation, but the actual structure and content of the rule: very often the result of this praxis is a pragmatic, detailed, concrete regulation of legal instruments, rather than a system of rights. A clear example is given by the directives on consumer protection – nowadays “Directive on Consumer Rights” – and particularly the well known “right of withdrawal”; a consumer opportunity to withdraw from a contract within seven (now fourteen) days is undeniably a proper “right”. However, the regulation provided in the directives is more focused on the procedure of withdrawal (the instrument) than on the effect of the withdrawal from the contract (the right). In general, the multilingual drafting of EU norms – and consequently of EUrights– is not automatically functional to the effective transposition of rights in the Member States and to the substantive equality of EU citizens before European law. The paper argues that this problem – causing a lack of communication between the EU institutions in charge of the formulation of European rule of law and the citizens – might be approached through different methodologies: linguistic, anthropological, juridical. Particularly in the analysis of the legal language of the EU comparative law science is equipped with methods and instruments which proved to be useful for breaking down the legal discourse of the European Union going beyond its words and highlighting the various “formants” (norms), some of which exist and come to light directly or indirectly as a consequence of the multilingual formulation of EU law.