For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 25 November 2008

The Kat Roars -- Parliament responds

A week ago, an item on this weblog ("IPKat rage over ECJ language issue") fulminated over the failure of the Curia website to furnish a version of the Advocate General's Opinion in Case C-497/07 Silberquelle GmbH v Maselli-Strickmode GmbH either in French or in English. Said the IPKat:

"The IPKat is enraged by the failure of the Curia to provide translations in French and English -- two languages that are very extensively used by businesses based outside the European Union and which are constantly assured that the EU offers a good, pro-competitive and business-friendly commercial environment in which to trade. Lack of money isn't an excuse. The EU has vast amounts to waste on trivial and inessential activities".
This has turned out not to be a miaow in the wilderness. Freshfields Bruckhaus Deringer partner Justin Watts, no doubt relieved to be able to take a brief break from his indoor rowing, wrote to his local Member of the European Parliament Andrew Duff MEP (right, Leader, UK Liberal Democrat European Parliamentary Party and Spokesman on Constitutional Affairs for ALDE, the Alliance of Liberals and Democrats for Europe), outlining the problem thus:
"Dear Mr Duff

I am writing to you as my MEP.

I have attached below the widely read blog of Professor Jeremy Phillips [member of the IPKat team]. He has for some time raised concerns over the continued delay and failure of the ECJ to produce its opinions and judgments in the most widely used languages of the EU and particularly in English. The instance referred to below (of an opinion being unavailable in English or French, but available in Spanish, German, Italian, Latvian, Dutch, Portuguese, Finnish and Swedish) is particularly ridiculous but is unfortunately it is more the rule than the exception.

Most opinions in intellectual property law are likely to be of interest only to intellectual property practitioners, a group among whom English is widely, almost universally, spoken. By failing to produce the AG's Opinion in English, it is withheld not only from the English and Irish contingent, but from nationals (and courts) in many other states who can read decisions in English but cannot read them in (say) Latvian.

The failure of the court to produce an English translation, or a French translation, of a critical opinion is ludicrous. This cannot be a question of money - the money has been made available to translate decisions into 8 languages. Any rational choice would suggest that English and French should be two of them. A decision based on population, frequency of language fluency, availability of translators, or contribution to budget would also have English and French translations near the top of the list.

I regard this as a major indictment of the EU's ability to spend my money wisely and administer systems well. Can you tell me how best one could wake the court's administrative processes up to the needs of the people it is supposed to serve?".
Deeply troubled by the situation, the good MEP wrote to the appropriate authorities, who told him that it can't be done. He reported back as follows:
"The facts of the matter appear to be these:

Case reports are made available in the language of the case, the language used in the application, and in the Court's language, usually French.

Likewise, opinions will be available at least in the language of the case and in French. In addition, the Court tries to translate opinions into the other EU languages to be ready before the judgment, but this is subject to the workload of the various translating departments. Some languages are available quicker than others because some translation departments have a higher workload or are permanently understaffed. English for instance has both problems.

Formally, all judgments will be published in all the EU languages, with the exception of smaller cases where French and the case language is the minimum. The Court aims to have the translation of the judgment in all the languages done before the publication of the judgment. However, this is again subject to the workload of the various translation departments.

The EU is short of money because the member states refuse to increase revenue. However, I accept that, even in these circumstances, not to put IPR opinions into EN is nonsense".
The MEP accordingly concludes:
"I will table a parliamentary question (to the European Commission) to ask them to act with the ECJ to rectify the matter".
Justin observes that the question might best be articulated so as to elicit an answer specific to IP cases, covering both failures and delays in translation. If the delay is long enough, it amounts to an effective failure. Judgments are supposed to appear in English, but in many cases the perception in the English profession is that the English version is months or years behind many of the other, less widely understood, languages.

The IPKat raises a hearty cheer. At last, a serious Parliamentarian is taking up the cudgel and is prepared to wield it. Merpel is sure that this will result in a knighthood at the very least.

Andrew Duff here
Plum Duff here
Damian Duff here
Mac Duff here

6 comments:

Anonymous said...

While I can understand that the IP community may be upset about decisions not being more widely translated, I would have thought that seeking translations of non-binding opinions is going a bit far. I presume that in this case, the opinion was translated from the original Spanish into the languages of the judges of the court. Why should money be wasted on translations for those not involved in the case?

Kristof said...

On a side note, DGComp has finally produced a public version of the CISAC Decision of 16 July this year:

http://ec.europa.eu/comm/competition/antitrust/cases/decisions/38698/en.pdf

Jeremy said...

Unlike the judgments of the court, which are often short and bereft of in-depth reasoning, the Advocate Generals' Opinions frequently possess a rich vein of legal and economic analysis that can be invaluable. They are often cited in decisions of other tribunals too. Waste of time? I think not.

Robert Hurst said...

It is also important to note that a large proportion of ECJ "customers" emanate from North America and South-East Asia, for whom English is the first or second language.

Anonymous said...

So... what do the native English speakers here now think of the objections that, say, the Spanish have against the London Protocol and the Community patent?

Or is it an accepted fact of biology that native Spanish speakers have a natural ability to learn a second and third language, and native Engish speakers have not?

The argument that English is required for non-European ECJ "customers" fails. It is quite normal for foreign courts to issue their opinions and judgments in a foreign language. If I can't read their judgments, I will just have to rely on other sources, e.g. contact a native speaker.

The IP community consists for the most part of professionals. They have the means to get to the bottom of things when necessary, even if the opinion is available only in Latvian.

Robert Hurst said...

I accept that it would be nonsensical to require a Spanish Court to publish its judgments in a foreign language. However, Jeremy is not complaining about the practices of a domestic court. His complaint relates to a supposedly international court.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':