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The Limitations of a Multilingual Legal System

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International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique Aims and scope Submit manuscript

Abstract

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law.

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Notes

  1. A title borrowed here from: Edwards [11]—an article which does in fact highlight issues of language albeit briefly.

  2. At the time of going to press there are 27 member states of the European Union. Croatia will join that list of EU member states in July 2013.

  3. The personal legal assistants who work for the judges and Advocates General at the CJEU. The French word référendaire is used throughout this paper instead of the English translation ‘legal secretary’ since it is by that title that those assistants are known within the Court, the working language being French.

  4. In particular those carried out by Marc Abélès and Irène Bellier on the European Parliament and Commission, see supra.

  5. Apart from slight editing (in parenthesis), the quotations in this paper are as they were recorded. Interviewees are identified only as far as the group to which they belong (i.e. lawyer-linguists, judges, Advocates General, référendaires).

  6. www.curia.europa.eu.

  7. http://curia.europa.eu/jcms/jcms/Jo2_6999/ (as at 17/01/13).

  8. Articles 36–42 of the Rules of Procedure of the Court of Justice set out the rules governing language at that institution. For proceedings before the General Court, the relevant provisions are Articles 35–37 of its Rules of Procedure. Under Article 29 of the Rules of Procedure of the Civil Service Tribunal, those provisions also apply to that tribunal. These rules for language use reflect those set out in Regulation 1/58 determining the languages to be used by the European Economic Community [1958] JO 17/385 (English Special Edition: Series 1, Chapter 1952–1958, p. 59).

  9. See http://curia.europa.eu/jcms/jcms/Jo2_10742/direction-generale-de-la-traduction (as at 17/01/13).

  10. Art. 42, Rules of Procedure of the Court of Justice of 29 Sept 2012 [2012] OJ L 265/1 @ p. 16.

  11. In 2008 the Translation Directorate employed 876 staff—46% of the Court’s total staff.

  12. At the time of going to press there are 23 official EU languages. These are, in English alphabetical order: Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovakian, Slovenian, Spanish and Swedish. The official order of these languages is to list them according to the way they are spelled each in their own language. Croatian will be added to that list in July 2013.

  13. Cf McAuliffe [16]. See also McAuliffe [18] for a discussion of how that hybrid ‘Court French’ has led to a type of precedent in CJEU case law.

  14. For a more in-depth discussion of this see McAuliffe [17].

  15. Because French is the working language of the Court, the French translation division provides translation from all of the post-2004 official languages while each of the other four pivot language divisions are ‘partnered’ with two or three post-2004 official languages. The German language division provides translation from Bulgarian, Estonian and Polish; the English language division from Czech and Lithuanian; the Spanish language division from Hungarian and Latvian; and the Italian language division from Romanian, Slovak and Slovenian. Neither Maltese nor Irish have been assigned to a pivot language division. Since English is the second official language of both Malta and Ireland, it is assumed that the Maltese and Irish lawyer-linguists are able to provide English translations of documents in Maltese and Irish where necessary.

  16. Note, this is in stark contrast to reports from référendaires interviewed, who all claim that they are strictly bound as regards the style of those documents and what phrases etc. they may use—see further McAuliffe [16].

  17. Similarly, see infra re Replica Sports Kit cases.

  18. For further and more in-depth discussion of such issues, see: Šarčević [22]; de Leo [10]; Lane [13]; Sacco [21].

  19. Merck and Others v Commission [1997] ECR II-849.

  20. Note: when asked to comment on this case in particular, all but one of the judges interviewed felt that the difference between the language versions was a “non-issue” (see infra re: teleological interpretation and a distinct EU legal language). One judge felt that the discrepancy in question was “a grave mistake” but that it was “of no real importance since the authentic version of that order is in English”.

  21. Order of the Court (Third Chamber) of 15 Jan 2004 in Case C-235/02 Criminal proceedings against Marco Antonio Saetti and Andrea Frediani [2004] ECR I-1005.

  22. Council Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194, pp. 39–41) as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ L 78, pp. 32–37).

  23. See Council Directive 75/442/EEC, Annex II B, operation R9 (note: such hazardous waste must be disposed of under very specific, strict conditions).

  24. OJ L 377, pp. 20–27.

  25. In the case in question, however, the Court decided that, in fact, the waste by-product should not be considered a waste at all but rather an integral part of the production process, because it was to be used again, and fully, without further processing.

  26. R v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585.

  27. Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

  28. However, Brown and Kennedy classify this discrepancy between the language versions as a mistranslation that has slipped through the “safeguards” in place at the Court to prevent mistakes in translation (such as having translations checked by the judge whose native tongue is that of the language of the case). In fact, the discrepancy between the language versions in the Santillo case is more likely to have been a result of approximation in translation than a mistake that managed to go unnoticed by the relevant judge.

  29. Brown and Kennedy [9]. See also: Barav [3].

  30. Case numbers 1019-1022/1/03 Umbro Holdings Ltd v Office of Fair Trading; Manchester United PLC v Office of Fair Trading; Allsports Ltd v Office of Fair Trading; JJB Sports PLC v Office of Fair Trading [2005] CAT 22.

  31. Cimenteries CBR and Others v Commission [2000] ECR II-491.

  32. In the case before the UK Competition Appeal Tribunal there had been a meeting where the JJB witness claimed that he had received information about other competitors but did not tell them what he intended to do.

  33. Case numbers 1021/1/03 and 1022/1/03 Allsports Ltd v Office of Fair Trading and JJB Sports PLC v Office of Fair Trading [2004] CAT 17, paragraph 159.

  34. Ibid.

  35. For an excellent examination of the CILFIT criteria from the perspective of legal linguistics see: Kjaer [12].

  36. 40 of the 78 interviewed felt that language issues could have potentially serious and far-reaching consequences as highlighted in the examples above. The remaining 38 felt that issues of language pose no particular problems for the application of EU law.

  37. Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415, paragraph 19.

  38. Case 29/69 Erich Stauder v City of Ulm [1969] ECR 419, paragraph 7.

  39. Case 6/72 Mij PPW International NV v Hoofdproduktschap voor Akkerbouwprodukten [1973] ECR 301, paragraph 14.

  40. Case 283/81 CILFIT v Ministry of Health, cited above, paragraphs 18–20.

  41. Case 100/84 Commission v UK [1985] ECR 1169, paragraph 17.

  42. See, for example, Case C-236/97 Codan [1998] ECR I-8679, paragraph 26; Case C-420/98 W.N. [2000] ECR I-2847, paragraph 21; Case C-257/00 Givane and Others [2003] ECR I-345, paragraph 36 and Case C-152/01 KyoceraElectronics Europe [2003] ECR I-13821, paragraph 33.

  43. Joined Cases T-22/02 and T-23/02 Sumitomo Chemical Co. Ltd and Sumika Fine Chemicals Co. Ltd v Commission [2005] ECR II-04065, paragraph 46.

  44. EKRO v Produktschap voor Vee en Vlees [1984] ECR 107.

  45. Commission Regulation (EEC) No 2721/81 of 17 September 1981 on the advance fixing of export refunds for beef and veal (OJ 1981 L 265, p. 17).

  46. EKRO v Produktschap voor Vee en Vlees, cited above, paragraph 7 et seq.

  47. This paper, together with previous work by the author [15–20] is suggestive of a research agenda just beginning to be explored. Problematising the CJEU in terms of its operation as a multilingual, multicultural institution also opens up further questions in relation to the role of language in the production and application of EU law. Answering those questions will introduce a new facet to the current thinking on the development of the EU legal order. The present author is currently undertaking a 58 month project, funded by the European Research Council, on Law and Language at the ECJ (http://erc.europa.eu/sites/default/files/document/file/erc_2012_stg_results_all_domains.pdf). Any questions or connections are warmly invited (k.mcauliffe@exeter.ac.uk).

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Acknowledgments

I would like to thank Prof. Robert Harmsen of the University of Luxembourg for his support and valuable comments as well as the reviewers of this journal for their constructive criticism. I would also like to thank my former colleagues at the Court of Justice in Luxembourg for their assistance with this research - in particular Mr Alfredo Calot-Escobar and Ms Susan Wright. Finally, I would like to thank Mr Brian Rainey for his invaluable technical help. Any errors are mine alone.

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    Karen McAuliffe

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McAuliffe, K. The Limitations of a Multilingual Legal System. Int J Semiot Law 26, 861–882 (2013). https://doi.org/10.1007/s11196-013-9314-0

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