Linguistic aspects of the implementation of european legislation in the member states

The case of the directive 2009/125/CE in Italy


Bachelor Thesis, 2011
58 Pages

Excerpt

TABLE OF CONTENTS

1. NOTES ON COMMUNITY LAW
1.1 Historical background of the European Union
1.1.2 The “Community law” and its institutions
1.1.3 The role of institutions in shaping standards
1.2 The Community legislative instruments
1.2.1 Regulations, decisions, recommendations and opinions
1.2.2 The Directive
1.3 The “EU enlargement" process

2. MULTILINGUALISM AND TRANSLATION
2.1 The reasons for multilingualism in the European institutions
2.1.1 Relations between multilingualism and translation
2.1.2 Modes of interpretation
2.2 Role of Legal Translator
2.2.1 From translator, text producer, co-drafter
2.2.2 The co-drafting: risks of ambiguity

3. LINGUISTIC ASPECTS OF THE DIR. 2009/125/EC AND DIR. 2005/32/EC AND OF ITS IMPLEMENTATION IN ITALY
3.1 Overview
3.1.1 Recasting: aspects of the content
3.1.1.2 Mode of action
3.1.1.3 Scope
3.1.1.4 The Dir. 2005/32/EC and 2009/125/EC in comparison
3.1.2 The Community Law
3.1.3 The report of the Community legislation with the Constitution
3.1.4 Italy under implementation

4. CONSIDERATIONS REGARDING MACROLINGUISTIC ANALYSIS
4.1 The semiotic dimension of the Directives
4.1.1 The intertextuality
4.1.1.1 The intertextuality in Italian decrees
4.1.2 The textual deictic
4.1.3 The superstructure of the decrees of the Italian and subdivisions of
4.2 Analysis microlinguistic
4.2.1 Lexical
4.2.1.1 "Input" or "input" of energy?
4.2.2 Deontic Constructs
4.2.3 The requirement in the legislative texts

CLOSING THOUGHTS

BIBLIOGRAPHY

REFERENCES
a) Collection of websites
b) Sources of law
c) Decisions

APPENDIX

INTRODUCTION

This research and analysis work aims to study the heterogeneity within, first, the language used by the European Union and, secondly, by the English and Italian law. The object of study taken into consideration is the European Directive 2009/125/EC of the council of 21st October 2009 and its transposition laws in Italy. The directive on examina- tion concerns the design of environmentally sound energy-related products. What is important to consider is the fact that the directive is likely to recreate the repealed directive 2005/32. This, however, is not completely disrupted, but needs to include changes which would not repeal the majority of the legislative decrees previously issued in Italy. As it is not uncommon for the criticism that the European Community would have made further complicating factor in the lives of those who are liable to respect the law, we can say that now the use of a idiolect featuring community activities in each of the 23 official languages is really common.

It was reported that idiolect ranges from the Italian "Eurocrates" to the English eurospeak, French eurobabillage, to the German Eurowelsch or Kauderwelsch 1. This "euroletto” in fact seems to allude to a nebulous language that produces texts often accused of not reflect- ing the patterns of spoken and written language in the various states. This undoubtedly gives the impression of botched translations which have been contaminated beyond meas- ure by the contributions of the lexical language most commonly used within institutions. In the course of this work it will be possible, after a historical introduction to law and the role of the translator, to touch on both the macro and micro editorial aspects of language as evi- denced by the Community.

The document refers to the eco-design, a "recent" and highly topical issue, in which the EU has intervened in the last twenty years through several directives on the matter. The supranational character of the new discipline exercises inevitably (and for reasons which are explained in the course of this work) a considerable influence on the national languages of law.

The first chapter outlines the historical profile of the European Union. From the first Community institutions, to their role and regulatory instruments that they produce, whilst paying close attention to the directive and its aims.

In the second chapter, a brief reference to the EU enlargement process aims to explain in more depth, the need within the Community field to adopt multilingualism and its practice of translation, together with a new professional role in the legal context: The Legal Trans- lator.

The third chapter introduces the directive and, after analysing the differences within the content of the directive (No. 2005/32) which was repealed in its favor, explains the objec- tives and describes the content. Starting with a denotative analysis and then penetrating the explanation of interpretative frames of the stylistic, lexical and morphosyntactic aspects. The last section of this paper briefly outlines the profile and energy initiatives which are fundamental to understand how the directive was born and later developed. This section will assess its gradual progression and final implementation within the Italian legal sys- tems, whilst trying to identify the characteristics of the normative texts which reminds us of the previous directive.

Attached at the end of this research are the Annexes of the European Directive the news and changes to the new directive compared to the previous 2005 / 32.

1. NOTES ON COMMUNITY LAW

SUMMARY: 1.1 Historical background of the European Union - 1.1.2 The “Community law” and its institutions - 1.1.3 The law formation: the role of institutions - 1.2 The Community legislative instruments - 1.2.1 Regulations, decisions, recommendations and opinions - 1.2.2 The Directive - 1.3 The “EU enlargement" process

1.1 Historical background of the European Union

Entities called “European Communities" and "European Union” are indispensable for the comprehension of the mechanisms through which the Italian legal systems ensures the applicability of all the regulations of the European Union and Community law. The path that led to the recent configuration of the common European home was a long one with winding paths of growth.

The origins of community integration began during the events of the World War II, through which conflicts and rivalries among the states of Western Europe were dramatically highlighted.

At that time there was a need for mutual economic cooperation1, coupled with the political opposition under the Soviet influence. This combination favoured the founding treaties of international intergovernmental organizations, such as the European Organisation for Economic Cooperation (OEEC, 1949)2, the North Atlantic Treaty Organization (NATO, 1949)3, and the Council of Europe (1949)4.

After taking note of the objectives of economic and social integration, a new kind of institutionalised form of cooperation between the States was born. These States had maintained an essentially intergovernmental profile, which was employed in a "single institutional framework". This framework was able to ensure "consistency and continuity" between the work carried out through community organizations and goals (still) assigned to the usual techniques of international collaboration. This one and others are the European Union under the Treaty on European Union (EU Treaty)5, which then doesn’t appear as a stable and definite reality.

Article No. 48 of the Treaty of Maastricht announced a revision of the treaty by a subsequent Intergovernmental Conference, which opened in Turin March 29th, 1996. This led to the signing of the Treaty of Amsterdam 2nd October 1997 and was enforced on 1st May 19996. The awareness and need of member countries to deepen integration, especially in the two new "pillars" just introduced by the Treaty gave birth to the EU7.

The European Community has thus acquired specific expertise concerning the measures on external border controls, asylum, and immigration as well as safeguarding the rights of nationals the third world countries8.

This provided the “communitarisation” material and replaced the old instruments of Community legislation, which Member States had to coordinate their action in the areas concerned.

In April 1951 the Treaty was signed by Belgium, France, Germany, Italy, Luxembourg and the Netherlands establishing the European Coal and Steel Community (CECA). Its aim was to create a first line of junction to form economic cooperation.

5 It identifies, but does not articulate, three types of missions that the organization could play in the cooperation between the European Communities, by modification of the founding treaties and, finally, the European policy of security and defense (Pesd) (cfr. PAGANI A., A new Gear in the CFSP Machinery. The integration of the Petersberg Task in the Treaty on the European Union, in European Journal of International Law, Università di Pisa, 1998, p. 740)

The CECA Treaty, as well as all other community acts, aims for the preservation of world peace, of peaceful relations between European states and the creation of a de facto solidarity. The CECA Treaty itself affirms, "(...) The first order is to build a wider and deeper community among peoples (...) and institutions under the Treaty are designed as (...) able to address a destiny henceforward shared by the Member States9 ”.

At the time the treaty came to the final course of its term, it was replaced by two treaties signed in Rome in March 1957 and enforced the following year. Its first aim was to establish a European Community still sectorial (EAEC, the European Atomic Energy Community), and secondly to create a community organisation which idealised of a common market in which the factors of production could move around freely and in a homogeneous space, characterized by uniform rules of competition (the European Economic Community, EEC).

This has led to an extension of areas of economic and social development of Member States, which were initially excluded from the influence of Community law.

Therefore seeing the widening circle of countries involved: the European Community becomes an institution entrusted with many sectors and spheres. From the control of legality to the areas of intergovernmental cooperation, the search for solutions of disputing states, the measures relating to immigration, asylum and the protection of the rights of the third countries.

1.1.2 The “Community law” and its institutions

As stated before, many skills have been attributed to the European Community; The European Council has the driving force to define the general policy guidelines necessary for the development of the European Union. Rather than being regarded as an institutional court, is part of normal practice in the summit meetings between the heads of State or Government of Member States.

The Council is comprised of the representatives of all Member States (Ministers) of variable composition (eg, covering all sectors: industry, transport, agriculture) in addition to the General Council where sitting ministers of foreign affairs. The Council has also been entrusted with the broader regulatory power (which includes the general coordination policies between Member States through the decision-making power, and/or gives the Commission powers to implement the rules it lays down, which manifests itself mainly through the adoption of regulations and directives - the two main Community instruments) The Board is assisted by a Secretariat acts as its administrative and functional support and High Representative for Common Foreign and Security Policy.

Another key body for the rule formation is the Commission. The Commission is involved in the monitoring of their execution and timely representation of the Community in external relations. This task is shared in part with other institutions (, for example, the administration with the ECB monetary policy). It is important to note that this body has no independent power with respect to exemptions in individual competition, public undertakings, state aid and trade policy.

The Commission consists of twenty members who in turn appoint the President and those who will play the role of the Commissioners: the first has the task to set the policy guidelines of the institution, while each of the latter is responsible for a sector of activity

(Internal Market external relations, agricultural policy, regional policy) and may adopt specific management measures.

To support the Commission in the approval process of standards is the European Parliament, comprised of representatives of the peoples of the states gathered in the community who exercises the powers that are attributed to the Treaty. This is followed by the principles of democracy and the integration on which its objectives are based.

To cope with disputing management, the presence of the Community Court is essential, and forms part of the Court of Justice, which has been entrusted to the judicial review of acts and their legitimacy.

The Court of Justice also comprises eight general attorneys who, together with fifteen Judges are based in Luxembourg and are appointed by common accord by the Member States for a period of six years10.

The Court of Auditors assists the budgetary authority in the exercise of control over implementation of the budget (carried out by Parliament and the Council). This ensures control over the financial management of the Community, and provides examination of all receipts, accounts and expenditure on its documents.

1.1.3 The law formation: the role of institutions

In order to better understand the training process of European laws it is necessary to investigate the roles that belong to each legislative body.

With the gradual integration that has been created between the different Member States, governing bodies have taken on tasks and roles of progressively greater responsibility.

With particular regard to the regulatory domain, the Council, with the support of Parliament and the Commission, shall act in its substance: it is further complicated by fact that they are bodies for mediation in the interests of technical sectors. Moreover, filter instances policies and the laws themselves also need the participation of citizens in the process of formation of the Community rules.

The adoption of an act of the Council shall be preceded by consultation of the Parliament, which is not binding but mandatory. It is essential to consider the act as valid and a means for effective participation of Parliament in the legislative process of the community, expressing its position and in consultation with the Council.

As a result, Parliament, Council and Commission shall cooperate in the so-called process called “conciliation”, which opens with the position expressed by the Council after the Commission proposal, is accomplished by comparing this with the Parliament and, finally, with the commissioning of the counter that rule, then act in a definitive way.

It is just before this last step that the Council demonstrates the Commission to have a "common position by a qualified majority", and then forward it to the Parliament, which has three months to approve; it is in that case that the Council shall act in conformity with the common position.

Where, however, the council rejects the proposal and recommend amendments, the following occurs:

1. The Council acts on second reading, but only by consensus;
2. The Commission shall review the proposal and submit to the Council its opinion on the amendments.

If the Council has not reached any agreement on the proposed amendments, the Conciliation Committee would be activated. The Conciliation Committee has the task to promote the rapprochement of positions in comparison: in six weeks if it fails to define a common project, however, this can be finally approved 6 weeks later, by an absolute majority from Parliament and the Council by qualified majority, otherwise, the act shall be deemed as not adopted11.

1.2 The Community legislative instruments

The Community legal system is composed of a primary law, which consists of the Treaties establishing the European Communities (EC and Euratom12 ), and the agreements that they have amended and supplemented and protocols annexed to it. The primary law is supported by the secondary compound by acts of the institutions which offer considerable difficulties to the interpreter; including the only lifeline, the subordination provisions of the standards in the founding treaties13.

With the Maastricht Treaty on the European Union were born, as previously stated, "policies and forms of intergovernmental cooperation14 ", whose aims are achieved through acts which constitute the European Union law.

"In order to perform their duties and the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions and make recommendations15 ".

So begins the Art. 149 (formerly Article 189) of the Treaty relating to the formal legal acts of the European Community, which states, "nutshell", the institutions of the Community may adopt: regulations (Article 189, paragraph 1st and 2nd EC; art. 249, 1st and 3 rd paragraph of the EC / Amsterdam) decisions (art. 189, par. 1 and 4 EC / Amsterdam), recommendations and opinions (Article 189, paragraph 1 and 5 in the EC; Article . 249, 1 and par. 5 EC / Amsterdam).

The following analysis aims to provide a better understanding of their function, effectiveness and what differentiates them from the directive.

1.2.1 The regulations, decisions, recommendations and opinions

"The regulations have general application. It shall be binding in its entirety and directly applicable in all Member States16 ".

The term “General mean” refers to the primacy of the Community law, regulates abstractly and generally an indefinite multiplicity of facts.

Generally regulations are to be allocated to the community; however, in exceptional cases, it is possible that their validity is restricted only to a Member State. However, if there has been a direct effectiveness without the need for an emanation of an internal transposition; it would run the risk of undermining their effectiveness17 ".

"The decision is binding in its entirety for it to designated recipients18 "

The decision is an individual act (which corresponds to any administrative decision of the individual national legal systems) and can be addressed to both individual states. Like the directive, the decision has the capability to produce direct results.

Recommendations and opinions are not binding documents, though the different bodies consult for hints, tips and advocate measures applying to the Member States of the Community institutions and/or other entities of the domestic law of member states.

- Recommendations are intended to encourage the recipient to take a certain course of action corresponding to common interests;
- Opinions tend to fix the point of view of the institution which issues in relation to a given problem19.

1.2.2 The Directive

"The directive is binding on the Member State which it is addressed as to the result to be achieved, without prejudice to the competence of national authorities the choice of form and methods20 ".

It can be argued that the directive is a legislative act "partially binding”, since, as repeatedly stated by the Court of Justice, it is binding only for its result. Each Member States within the deadline set by the directive, adopts this in order to implement measures bound by the result of the directive21. The Directive aims to approximate and harmonize the laws that would otherwise travel on parallel tracks. Every Member State, in fact, following the adoption of the Directive, uses it to unify their different national laws.

What sets it apart from the regulation is only the first order: the regulation, having a more dramatic objective, strives to achieve the unification of legal systems, replacing their national law, within the directive. However, the Court of Justice requires the adoption of methods of transposition that are no doubt binding in principle, to this end it proves necessary to adopt a law.

The main steps that they see make the directive are as follows:

The directive, before being issued, should include provisions that must be sufficiently precise, detailed and unconditional, and shall not permit the possibility of error during the performance;

The issue of discipline in frame (adopted by the directives) is sent to the community bodies.

Member States, however, are required to formulate specific measures for implementation, and should "unconditionally execute the directives under the terms set by them22 ".

There is also, however, the so-called detailed directive, which specifies a scheme, which has binding force and, therefore, supports the regulation. It is usually preferred to regulation when a national authority can not object to a single legislative or administrative plan that is not consistent with a provision of the directive which contains all the features needed to be applied by the courts.

In the case where the state is in default, (that has not adopted within the deadlines), the implementing measures cannot rely on individuals to fulfil their obligations under the directive; it follows therefore that the national court is obliged to seek and to set aside a national law compatible with Directive not yet transposed by the national law system23.

1.3 The EU enlargement process

The process of “EU enlargement” was the subject of political attention in the recent few years.

The lack of historical conflict between Eastern and Western Europe (following the fall of communist regimes), has brought the EU to face the problems of a massive expansion. This was due to the requests for accession by all States of Eastern Europe, now based on the principles of liberty, democracy, rule of law and respect for human rights and fundamental freedoms24.

EU member states have laid the institutional basis for a membership, concluding a new treaty in Nice on 26th February 2001. This treaty entered into force on 1st February 200325. It had made it clear that real determination to make the entry of ten new Member States possible26.

This event was a turning point in the long and uneven path of European integration.

Post the Second World War, countries embarked on their own political, social and economic agenda, all of which were radically different. Now however, they are demanding to adhere fully to the experience of freedom that began with the Treaty of Rome.

At the same time, it should be appreciated the intense effort to adapt the candidate countries themselves: it’s a real revolution compared to the previous reality. First they had to embrace the precepts of the Union, to transpose the entire acquis communautaire and to fall in step with the policies governed by it: that means they had to be able to interact.

If, however, on the one hand, there is a progressive harmony among Member countries, there are few who can claim a loss of privileges (such as loans or otherwise) that these very policies have ensured, or those seeking new constitutional rules or more transparency and democratic legitimacy.

The European Union is considering and working its choices, based on the principles of reform of Maastricht, the Treaty of Amsterdam, or by acts of the European Community. Article 2 EC, for example, states that “the Community has the task, by establishing a common market and an economic and monetary union and by implementing policies and actions referred to in Articles 3 and 4, a harmonious and balanced development of the activities of economic activities, sustainable, non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and social protection, improvement of living and quality of life, economic and social cohesion and solidarity among Member States”.

On the one hand the fundamental objectives are significantly expanded, with a view that is more responsive to social needs, secondly, the basic tools are not just the establishment of a common market27 and progressively approximating the economic policies of the Member States28 but they must be added to the implementation of policies and actions 29.

[...]


1 COSMAI D., Tradurre per L’Unione europea. Prassi, problemi e prospettive del multilinguismo comunitario dopo l’ampliamento a est, Hoepli, Milano, 2007, p. 24

1 The implementation of economic assistance to Europe known as “Marshall Plan” put forward by the U.S. Secretary of State G. Marshall in June 1977, in which subsidies were paid in goods and services that were supposed to redeploy the war economy into a peace economy project, but that could be also political and social (Excerpt from the Study Guide at the official website of the U.S. USAID http://www.usaid.gov/about_usaid/)

2 Then replaced by the institution of the OECD, signed December 14, 1960, replacing the OEEC that, in fact, was created in 1948 to administer the so-called "Marshall Plan" for the reconstruction of postwar European economic reconstruction.

3 It is an intergovernmental organization established in 1949 to ensure peace and security in Europe and which includes twenty-six countries (cfr. ibidem)

4 International organization whose purpose is to promote democracy, human rights, European cultural identity and the search for solutions to social problems in Europe. Now The organization has forty seven states.

5 It identifies, but does not articulate, three types of missions that the organization could play in the cooperation between the European Communities, by modification of the founding treaties and, finally, the European policy of security and defense (Pesd) (cfr. PAGANI A., A new Gear in the CFSP Machinery. The integration of the Petersberg Task in the Treaty on the European Union, in European Journal of International Law, Università di Pisa, 1998, p. 740)

6 Op. cit., pp. 712-718

7 The Amsterdam Treaty also includes innovations that extend in the direction of strengthening the political union policy, with new provisions in the policies of freedom, security and justice, including the birth of the cooperation of police and judicial cooperation in criminal matters, in addition to integration of the Schengen Treaty (cfr. http://www.sintesidialettica.it/documenti/TrattatodiAmsterdam.pdf, pp. 8-12)

8 Cfr. Art. 61, TITOLO IV, EC Treaty: “Visti, Asilo, Immigrazione, ed altre politiche connesse con la libera circolazione delle persone”

9 CODINANZI M., L’adattamento al diritto comunitario e dell’Unione Europea, Torino, Giappichelli, 2003, p. 3

10 Op.cit., pp. 5-9

11 BONINI M., HARATSCH A., KOENIG C., Diritto Europeo: introduzione al diritto pubblico e privato della Comunità e dell’Unione Europea, Giuffrè, Milano, 2000, pp. 110-122

12 The Atomic Energy European Community, that substitutes the CECA

13 CODINANZI M., L ’ adattamento al diritto comunitario e dell ’ Unione Europea, Torino, Giappichelli, 2003, pp. 10 - 13

14 Article 1 of the EU Treaty, regarding the objectives of the creation of the EU, that can be consulted at the following link: http://eur-lex.europa.eu/it/treaties/dat/12002M/htm/C_2002325IT.000501.html

15 From the site: EUR-Lex.europa.eu

16 Ibidem

17 Op. cit., p. 19

18 Art. 249, 4° comma, CE

19 From “The general principles of the EU”, http://europa.eu/scadplus/constitution/legislation_it.htm

20 BONINI M., HARATSCH A., KOENIG C., Diritto Europeo: introduzione al diritto pubblico e privato della Comunit à e dell ’ Unione Europea, Giuffrè, Milano, 2000, p. 104

21 BONINI M., HARATSCH A., KOENIG C., Diritto Europeo: introduzione al diritto pubblico e privato della Comunit à e dell ’ Unione Europea, Giuffrè, Milano, 2000, p. 104

22 Art. 5, 1° comma CE; art. 10, 1° comma CE/Amsterdam

23 CODINANZI M., L ’ adattamento al diritto comunitario e dell ’ Unione Europea, Torino, Giappichelli, 2003, p. 25

24 Art. 6, par. 1 e art. 9 of the EU Treaty

25 Cfr. the EU enlargement protocol

26 The negotiations for the enlargement were closed in 2004 with the accession of the following: Poland, Hungary, Czech Republic, Estonia, Latvia, Lithuania, Slovenia, Slovakia, Malta, Cyprus, Romania and Bulgaria. In addition, in December 1999 the Helsinki European Council gave Turkey the candidate status

27 Established by the single European Act of February 1986, it focuses on the so-called freedoms, which aim to remove obstacles to the intra-community trade, in order to merge national markets into a single market as similar as possible to a real internal market ( cfr. the Schul ruling of 5th May 1982, Case 15/81)

28 To remember the conduct of a unified exchange rate policy, in order to preserve price stability and support the general economic policies, in order to preserve the price stability and support the general economic policies, while respecting the free market and having as a goal to adopt a single currency, the EURO.

29 Art. 3 EC refers to them talking to liberalize the movement of goods, persons, services and capital; activate a common commercial and policy in agricultural, fisheries, transportation, environment, cooperation and development, making European industry more competitive, adopting some measures about energy, or encouraging research and technological development

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Details

Title
Linguistic aspects of the implementation of european legislation in the member states
Subtitle
The case of the directive 2009/125/CE in Italy
College
Università degli Studi di Milano
Author
Year
2011
Pages
58
Catalog Number
V283660
ISBN (eBook)
9783656833161
ISBN (Book)
9783656833178
File size
943 KB
Language
English
Tags
linguistic, italy
Quote paper
Federica Bizzotto (Author), 2011, Linguistic aspects of the implementation of european legislation in the member states, Munich, GRIN Verlag, https://www.grin.com/document/283660

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