New-bilingualism in EU Private Law

In the past days I have been thinking about the language that we use when we debate questions of European private law. This is, of course, connected to the language that we use in our law schools and in our research. Unfortunately, from my point of view, this is usually the national language only.

In the past decade I have been primarily teaching and conducting my research in English. Teaching and researching in English offers particular challenges to non-native speakers because,  after all, we use the language of English law to deal with other legal traditions. Much has – of course – been written about this and I do not wish to repeat the already existing points of view; Law, culture and language are strongly connected and hence there is somewhat of a reflection of the legal system in the language it is expressed in.

However, doesn’t the European integration process bring changes to this we usually do not consider in this context? How about terms in legislation that have an autonomous European Union meaning? I am thinking about matters such as equality, but also private law methodology mentioned in primary and especially secondary EU law. The Succession Regulation and the proposed regulations on Marital Property Law and the Property Regime of Registered Partners do this for property law. There, all of a sudden, we have an almost substantive definition of property rights (or rights in rem) (i.a. in recital 16 Succession Regulation), numerus clausus (in recital  15 Succession Regulation), and – especially – of the idea of adaptation of foreign property rights into national equivalents.

Recital 16 of the Succession Regulation states to this effect:

„However, in order to allow the beneficiaries to enjoy in another Member State the rights which have been created or transferred to them by succession, this Regulation should provide for the adaptation of an unknown right in rem to the closest equivalent right in rem under the law of that other Member State. In the context of such an adaptation, account should be taken of the aims and the interests pursued by the specific right in rem and the effects attached to it. For the purposes of determining the closest equivalent national right in rem, the authorities or competent persons of the State whose law applied to the succession may be contacted for further information on the nature and the effects of the right. To that end, the existing networks in the area of judicial cooperation in civil and commercial matters could be used, as well as any other available means facilitating the understanding of foreign law.”

Article 31 of the Succession Regulation then states the rule:

„Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.”

This is something very special as terminology such as „right in rem”, and „adaptation” are now EU terms and no longer exclusively terms in national private law – substantive or private international law. They come, in other words, with the force of EU law and with the Court of Justice of the European Union as final interpreter of their meaning.

Doesn’t this change the way in which we talk about the law? After all, with EU terminology also comes the European method, i.e. direct effect, effet utile, and the law of the internal market. We are, in other words, perhaps aware that we are expressing our own law in a language developed to describe another system, but even then we need to be bilingual, in a new sense of the word, to speak a national legal language as well as an EU legal language.

The field of (European) private law is changing face and this is, I submit, yet another example of the effect of Europeanisation on our national legal orders.