Background to the complaint

1. The complainant is the Austrian Association of Railways, which is the Austria-wide interest representative for all railways and local public transport companies. It complained to the Ombudsman that an appendix of an EU implementing regulation[1] was available in English only. The Implementing Regulation is part of numerous regulatory measures that the EU has taken to ensure the interoperability of the railway systems in the Union.[2]

2. The Implementing Regulation refers to the appendix in question - Appendix A - as follows:

3. The footnote of the above sentence states “Published on the ERA [European Railway Agency] website (www.era.europa.eu).”[3]

4. The complainant wrote to ERA about the fact that there was no German translation of Appendix A. ERA replied as follows: “Appendix A is managed as an ERA Technical Documents and as such made available in English at [weblink]. Currently, due to budget restrictions and limited resources, translation of Appendix A version 5 is not envisaged by the Agency. Taking into consideration similar requests received from other Stakeholders, a request to make available Appendix A in all languages has been addressed to the European Commission and should be prepared for the next revision...”.

5. The complainant considered this to be a vague and unhelpful statement. It complained to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry, asking ERA and then the European Commission to reply to a number of questions. Their replies were sent to the complainant for comments.

7. The complainant maintained it complaint but chose not to submit comments.

Whether translation into all EU languages was required

Preliminary remarks

8. The inquiry concerns whether the absence of a translation of an appendix to an EU regulation was consistent with the rule that “regulations and other documents of general application shall be drafted in the official languages.”[4]

9. The inquiry was opened towards the European Railway Agency (ERA), which had initially replied to the complainant’s concern that it had not translated the appendix.

10. The Ombudsman subsequently decided to request a reply from the European Commission, which had adopted the Implementing Regulation in question. The Commission confirmed that the regulation, “including its annexes and appendixes”, is an act of general application and is directly applicable in all Member States.

11. The responsibility for whether or not the appendix was translated thus lay with the European Commission. The Ombudsman has conducted her assessment accordingly and addresses her findings to the Commission.[5]

The European Commission’s reply

12. Commission Implementing Regulation (EU) 2019/773[6] (the Implementing Regulation) provides that its Appendix A shall apply from 16 June 2024 at the latest. Appendix A shall therefore apply from 16 June 2024. By that time, Appendix A will be a fully integrated appendix to the Implementing Regulation and thus available in all official languages of the EU. The Commission is responsible for providing the translations.  

13. At the time of the adoption of the Implementing Regulation, it was considered sufficient to include a reference to the English version of Appendix A on the website of the European Railway Agency. It was therefore not reproduced in the text of the Implementing Regulation.

14. The Commission stated that the Implementing Regulation, including its annexes and appendixes, is an act of general application, binding in its entirety and directly applicable in all Member States. The Commission added that the fact that Appendix A held the status of ‘ERA Technical Document’[7], addressed to restricted categories of persons (essentially equipment manufacturers and transport operators), formed the background to ERA’s conclusion that the Appendix did not need to be translated. According to the Commission, this assessment is in line with the case law of the European Court of Justice[8], which has endorsed the possibility of referring, in the acts adopted by the EU legislature, to technical standards of bodies, such as the International Organisation for Standardisation (ISO), which are available in English and French only. The reference to such standards must be clear, precise and predictable as to their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law[9].

15. The Implementing Regulation in question was published in the Official Journal of the European Union. References to the document published on the ERA webpage were clearly established and identified. Therefore, as in the case of standards set by the International Organisation for Standardisation (ISO), the mere fact that the Appendix was not translated does not call into question its validity[10].  As set out above, by the time Appendix A becomes applicable (in 2024), it will have been published in the Official Journal of the European Union in all official languages.

16. The Ombudsman inquiry team followed up with the Commission about the state of play of the translation and revision related to this matter. It was informed that the Commission is planning to defer the date of applicability of the content of the appendix. This would mean in practice that by the time a manufacturer or operator will have to consult that content to prepare for its coming into force, the translations will have been made available.

The Ombudsman's assessment

The Commission will address the specific translation issue

17. The Commission confirmed that the content of the Appendix in question has ‘general application’. The Commission has decided to integrate its content into the Implementing Regulation and by the time it becomes applicable it will have been published in the Official Journal of the European Union in all official languages. Moreover, the planned deferment of the date of applicability of the content of the appendix should allow sufficient time for it to be consulted to allow manufacturers and operators to prepare in advance.

18. The Ombudsman therefore considers that, at this stage, no further inquires are justified on the issue.

Content of general application should normally be translated

19. While welcoming the fact that the translation issue has been addressed in this case, the Ombudsman considers it appropriate to address the Commission’s argument that recent case-law may justify not translating certain documents of general application.

20. In the judgment referred to by the Commission, the Court upheld the legality of a reference, in legislation adopted by the EU legislature, to technical standards of the International Organisation for Standardisation (ISO), which were available in English and French only. The Commission appears to assume, in summary, that had someone challenged in court the absence of a translation in this case, the Court would have upheld the legality of that lack of translation. 

21. The Ombudsman is not convinced that this assumption is reasonable. In this case, the question was whether the fact that an Appendix to an EU regulation had not been translated was consistent with the rule that “regulations and other documents of general application shall be drafted in the official languages.”[11] The judgment referred to by the Commission did not expressly rule on the application or possible breach of this rule, nor did it rule on the translation of technical standards adopted (as in the present case) by the EU itself. It ruled on the legality of a reference to standards adopted by another organisation, the International Organization for Standardization (‘ISO’), which provided those standards in English and French. The Court moreover emphasised the specific features of the system established by ISO[12], which do not appear comparable to the circumstances or features of the implementing regulation in question.

22. The Ombudsman therefore cannot agree with the Commission’s assumption that the rule that EU regulations and other EU documents of general application be drafted in all the official languages has been relaxed.

Conclusion

The Commission will address the translation issue in this case and no further inquiries are therefore justified.

The complainant and the European Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 20/07/2023

 

 

[1] Commission Implementing Regulation (EU) 2019/773 of 16 May 2019 on the technical specification for interoperability relating to the operation and traffic management subsystem of the rail system within the European Union (https://eur-lex.europa.eu/eli/reg_impl/2019/773/oj)

[2] https://www.era.europa.eu/domains/technical-specifications-interoperability/operation-and-traffic-management-tsi_en

[3] The appendix is published here : https://www.era.europa.eu/system/files/2022-11/Appendix%20A%20to%20TSI%20OPE%20%28Updated_%2009_04_2019%29.pdf

[4] Regulation No 1 determining the languages to be used by the European Economic Community https://eur-lex.europa.eu/eli/reg/1958/1(1)

[5] The most useful information that ERA provided in its reply is taken into account when appropriate and referred to in footnotes in the account of the Commission’s reply.

[6] https://eur-lex.europa.eu/eli/reg_impl/2019/773/oj (“Decision 2012/757/EU is repealed with effect from 16 June 2021.

However, Appendix A and C of the Annex to Decision 2012/757/EU may continue to apply by 16 June 2024 at the latest.”)

[7] In its reply, ERA explained the term ‘technical document’ as follows: “The term “technical document” is not defined in any legal text relevant to ERA. A working definition which is agreed within ERA is that a technical document is a record which:

- contains specifications relevant for complex technical systems, such as the European Rail Traffic

Management System (ERTMS) in the field of railways; and

- is addressed mainly for use to a specific group of stakeholders, such as suppliers of railway products,

located in different states and using different languages.”

[8] The Commission referred to the judgment of 22 February 2022 (Grand Chamber), Stichting Rookpreventie Jeugd and Others v Staatssecretaris van Volksgezondheid, Welzijn en Sport., case C-160/20, paragraph 44, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0160

[9] The above judgment, paragraph 45.

[10] In response to the Ombudsman’s question why previous versions of the Appendix had been translated, ERA replied that “Previous versions of Appendix A were versions 1, 2, 3 and 4. Out of them, only version 4 was available in 21 EU languages. ERA has no information on how the decision was taken to have version 4 translated under the EC’s budget.”

[11] Regulation No 1 determining the languages to be used by the European Economic Community https://eur-lex.europa.eu/eli/reg/1958/1(1)

[12] Paragraph 52 of the judgment.