учебный год 2023 / Rutgers, A Registered European Security Instrument in a Multilingual European Union

language issue, the ECJ did not follow its Advocate General Mazak, but held that the warrant for execution had to be in one of the official languages of the country where the addressee had his habitual residence so that he could enforce his rights. If this is not observed, it is matter for national law to remedy this failure, since the Directive does not provide any rules in this respect.

Another legislative document that contains rules on languages is the Regulation (EC) N° 207/2009 on the Community trade mark.38 The Community trade mark concerns a right that has third party effects, which can be obtained by registration of the trade mark (art. 6, 9 of Regulation 207/2009) and exists in addition to other national or international trade marks. As to the language requirements, the application for the trade mark shall be filed in one of the EU official languages (art. 119 Reg. 207/2009). In addition, all entries in the register shall be published in all EU official languages (art. 120 Reg. 207/2009). Anecdotal evidence provides that the entries to be in all official languages was necessary otherwise the Member States would not agree and unanimity was required because the regulation was adopted on the basis of Article 308 EC (now Article 352 TFEU).

IV Conclusions

What conclusions can be drawn from our enquiry of the ECJ rulings and the European enactments relating to mulitlinguilism in the EU and the DCFR language requirements concerning an electronic register for an ESI? In the rules examined above, English has a very dominant position, although this does not correspond to the results of empirical evidence, from which it follows that German, French, Spanish and Polish are also frequently used in trade within the European Union.

As pointed out, the Union institutions must respect the Charter concerning the non discrimination rules with respect to languages. However, it is unlikely that the ECJ will annul a European legislative act, if the Charter has not been observed. Further, the ECJ cases with respect to the free movements show that language requirements may constitute

38 Council Regulation (EC) No 207/2009 of 26 February 2009 on theCommunity trade mark (codified version)(Text with EEA relevance) OJ 2009 L 78/1 42.

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an obstacle to trade. On the basis of the discrimination argument as put forward in Bicker arguably non native English speakers are discriminated in the case of the ESI, since English nationals have the possibility of speaking their native tongue, whereas others do not have that option. It is submitted that this argument is the mirror image of the one in Bicker.

There, nationals of another Member State wished to be entitled to the same rights as the national of the Member State, where the court proceedings took place.

Next, the Community trade mark could be compared to the ESI, since it concerns a right vis à vis third parties: it is a European instrument, in addition to national ones, and it deploys a register. All entries in the register concerning a Community trade marks must be in all languages. As said before, in the case ofan ESI, this is not likely to be problematic, however, the request for information and its answer in a certain language is.

With respect to the enforcement of both administrative decisions and the service of (extra )judicial documents in civil and commercial matters, there is secondary legislation and case law with respect to certain language issues. From these enactments and case law, it can be deduced that the addressee must be able to understand the information provided. Although neither the ECJ nor the preambles of the directives seem to refer to Article 6 of the European Convention of Human Rights, concerning, inter alia, the right to a fair trial, these decisions could be considered in that light. It is submitted that the rules included in the ESI are not concerned with a right to fair trial, but with information.

Taking all this into account, it could be argued that the rules of the DCFR do not respect the non discrimination of languages as included in the Charter on Human Rights. Moreover, the rules included in the DCFR do not reflect the results of empirical evidence with respect to the use of English in intra Union trade. English seems to be less dominant in fact, than the DCFR rules presume. Considering these conclusions, the rules on language requirements concerning the ESI in the DCFR should be reconsidered or in addition to English, it should also be possible to pose questions in French, German, Spanish and Polish, as well as the language of the place of residence of the secured creditor.

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