Abstract
The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.
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Notes
In theory, the Court of Justice produces case law in all of the official languages of the EU. The official languages of the EU are, in English alphabetical order: Bulgarian; Czech; Danish; Dutch; English; Estonian; Finnish; French; German; Greek; Hungarian; Italian; Irish; 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.
Although only one language version of a judgment, usually a translation, will be deemed ‘authentic’—see further: McAuliffe [11].
Pym [17], p. 202. Pym is making reference here to the beginning of Horace’s Ars poetica: “If a painter chose to join a human head to the neck of a horse, and to spread feathers of many a hue over limbs picked up now here now there, so that what at the top is a lovely woman ends below in a black and ugly fish, could you, my friends, if favoured with a private view, refrain from laughing?” (Fairclough’s translation, as cited by Pym).
See further: Schäffner and Adab [18], p. 169–171.
While cabinet may be translated into English as chambers the French term is used throughout this paper for two reasons: first, to avoid confusion with the use of the word Chamber for a subdivision of the Court; secondly, unlike the English word chambers, ‘cabinet’ in the context of the Court is used to refer both to the judge’s or advocate general’s suite of rooms and to the staff working there.
Again, 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.
In spite of the fact that référendaires are required to work wholly in French they are not required to have a ‘perfect’ command of that language. If a référendaire is not sufficiently competent in the French language, however, it can cause problems for the judge in whose cabinet he or she works—see infra.
For every action before the Court a ‘judge rapporteur’ is appointed by the President of the Court. The judge rapporteur is responsible for monitoring the progress of the case, drafting the reports at various stages of the procedure as well as the draft judgment.
In reality many cabinets begin drafting the preliminary report, report for the hearing and sometimes even the judgment (as reported by a référendaire from one particular cabinet) as soon as all of the parties’ submissions have been lodged, i.e. without waiting for translation of those documents.
Note: Until 2004 where there was no hearing in a case the report produced was known as the report of the judge rapporteur. However, the practice of producing such a report in cases that do not require an oral hearing was abolished in 2004.
Note: this practice is considered “dangerous” by the vast majority of lawyer-linguists at the Court since the documents from which the référendaires usually ‘cut-and-paste’ are in fact translations of the original submissions—aside from the accepted ‘approximation’ in the translation process, those translations are often rushed and frequently contain discrepancies or even errors. For this reason, many lawyer-linguists actually go back to the original submissions when translating the report for the hearing ‘back’ into the language of the case (cf McAuliffe 2006) [11]. The real danger, however, arises at the stage of translation of the judgment—if the lawyer-linguist in question does not understand the language of the case and so cannot consult either the original submissions or the translated report for the hearing but must work only from the French version, he or she may not be aware of any problems or discrepancies.
Note: an opinion is not given in every case before the Court of Justice (since 2004 if a case raises no new questions of law then an advocate general’s opinion is not necessary); an ‘advocate general’s opinion’ may exceptionally be given in cases before the General Court (Articles 17–19 of the Rules of Procedure of the General Court). However, in such an event, the opinion will be drafted by a judge of the General Court who has been designated ‘advocate general’ in a specific case (see Article 2 of the Rules of Procedure of the General Court).
This has only occurred a handful of times, and is officially ‘frowned upon’ by the Court of Justice, in particular when such cases come before the Court of Justice on appeal and there are no French documents available from which that Court can work. See McAuliffe (2006) [11] for commentary on the use of English at the General Court since the May 2004 enlargement.
The GTI is a computer programme developed by the Court of Justice to aid and speed-up the translation process at that Court.
Comments such as this are particularly interesting as they show that référendaires feel constrained by the language used by the Court even though, strictly speaking there is no rule of precedent within the EU Court system and in theory the Court of Justice and General Court are not bound by their own previous decisions.
The registry makes a list of all of the cases lodged at the Court and sends that list to the President’s cabinets. A few times a year the President will consider a cross-section of the cases that have come in and will decide to which cabinet they will be allocated. In principle the allocation of cases is “random and equitable” in order to ensure a fair workload for each cabinet and not to produce a particular specialisation by way of subject-matter.
However, it must be noted that the organisation and running of the President’s cabinet, as with every other cabinet in the Court of Justice and General Court, is “not done on a formal level”, i.e. there are no formal structures or rules as to how a cabinet must work; a cabinet is run entirely in the way that the relevant judge/advocate general sees fit and each cabinet will be different.
However, according to some lawyer-linguists such mistakes are even more likely where the référendaire does not fully understand the implications of the translation of their choice of wording or terminology in French—cf McAuliffe [11], p. 168–170.
It must be noted that that “pompous tone” appears to have gradually crept into the judgments of the Court of Justice. In the 1970s (when, incidentally, the President of the Court was a German, Judge Kutcher) the judgments of that Court were much lighter and “not so stuffy” (référendaire).
The lecteurs d’arrêts are francophone lawyers who ensure that the judgments read fluently yet remain sufficienctly clear and precise.
See supra., note 15.
The present paper focuses specifically on the drafting of judgments and opinions by référendaires and not with the subsequent translation of those documents by lawyer-linguists. For an in-depth discussion of the role of translation and lawyer-linguists at the Court of Justice of the European Union and the production of a translated case law see McAuliffe [11–14].
It should be noted that the référendaire in question here is a French national—the expression “prester un service” is in fact also commonly used in Belgium (both in legal and everyday language). It is likely that the phrase came into use as a result of a ‘Netherlandic corruption’ insofar as “presteren” as a verb and “prestatie” as a noun are used in that way in Dutch.
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Acknowledgments
I would like to thank Dr Robert Harmsen of the Queen’s University of Belfast for his support and valuable comments. 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. Any errors are mine alone.
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This paper is based on the results of periods of participant observation at the Court of Justice of the European Union undertaken between 2002 and 2006; all comments/criticisms are welcome (k.mcauliffe@exeter.ac.uk). Unless otherwise indicated all quotes are taken from interviews with référendaires, judges, advocate generals and lawyer-linguists at that Court.
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McAuliffe, K. Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union. Int J Semiot Law 24, 97–115 (2011). https://doi.org/10.1007/s11196-010-9188-3
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DOI: https://doi.org/10.1007/s11196-010-9188-3