Linguistic Precedent in the Judgments of the CJEU Karen McAuliffe - - PowerPoint PPT Presentation

SLIDE 1

Linguistic Precedent in the Judgments

• f the CJEU

Karen McAuliffe University of Birmingham, UK @dr_KMcA

SLIDE 2

Law and Language at the ECJ

Producing a multilingual jurisprudence

• a sociology of the ECJ
• has the institutional model changed post 2004?
• a linguistic cultural compromise at the Court?

Reinforcement of constitutional pluralism?

Development of ‘precedent’ in ECJ judgments

Precedent:

• a conscious jurisprudential strategy
• mechanics of jurisprudential drafting

Translation adds another variable

The changing role of the AG

• question of persuasive logics
• Deliberative effect of language

What does this mean for the development of EU law? BUT Is there continuity across languages? Do different scholars construct different meanings and precedents from different linguistic constructions?

SLIDE 3

Methodology

RQs

Case law analysis Observa1onal data Interview data Corpus linguis1cs analysis Systema1c literature reviews

SLIDE 4

What is Precedent?

• Norma1ve implica1ons?
• Strict, formal binding force?
• ‘precedent’; ‘stare decisis’; ‘jurisprudence (FR).

SLIDE 5

Precedent in EU law?

• Art 228 TFEU

BUT

• ‘case law – though in theory not formally binding – is o8en

the most important source of law’ Komarek, ‘Judicial Lawmaking and Precedent in Supreme Courts’, LSE Law, Society and

Economy Working Papers 4/2011

• ‘judicial supremacy has been a central seam in the EU legal
• rder’

Chalmers, ‘Judicial Authority in the Cons1tu1onal Treaty’ (2003) 3 InternaGonal Journal of

ConsGtuGonal Law

SLIDE 6

What is Precedent?

• Conscious jurispruden1al strategy
• Mechanics of jurispruden1al draYing

SLIDE 7

Flowchart of procedure

Case brought before ECJ Allocated to judge rapporteur (and AG where relevant) Documents translated into French Report of the judge rapporteur and, where relevant , report for the hearing prepared by referendaire (in French) Where relevant, AG and referendaires prepare Opinion (in pivot languages) First version of judgment draYed by referendaire (in French) Secret delibera1ons (in French) Final judgment draYed (in French) Judgment translated into language of the case (authen1c version of judgment and version signed by judges) and all other official language

SLIDE 8

Transla1on at the ECJ

BG ES CS DA DE ET EL EN FR GA HR IT LV LT HU MT NL PL PT RO SK SL FI SV BG ES CS DA DE ET EL EN FR GA HR IT LV LT HU MT NL PL PT RO SK SL FI SV

JUDGMENT WORKING LANGUAGE: FRENCH

SLIDE 9

Transla1on at the ECJ

BG ES CS DA DE ET

EL

EN FR GA HR IT LV LT HU MT NL PL PT RO SK SL FI SV BG ES CS DA DE ET

EL

EN FR GA HR IT LV LT HU MT NL PL PT RO SK SL FI SV

JUDGMENT WORKING LANGUAGE: FRENCH

SLIDE 10

Transla1on Regime at the Court

Pivot transla1on

(a) Documents draYed in ‘new’ languages

Translated into French Translated into pivot language Translated into all

• ther official languages

Order for reference For a preliminary ruling

SLIDE 11

Transla1on Regime at the Court

Pivot transla1on

(a) Documents draYed in ‘new’ languages

Translated into French Member State observa1ons

• r

applica1on to intervene Translated into language of procedure (where this is the relevant pivot language) Translated into language of procedure (where this is not the relevant pivot language) Translated into French All other documents

SLIDE 12

Transla1on Regime at the Court

Pivot transla1on

(b) Documents draYed in ‘old’ languages

Order for reference for a preliminary ruling Translated into Language of procedure (i.e. In cases where language of procedure is a‘new‘ language and the original document is not draYed in the relevant pivot language) Translated into French Translated into Language of procedure (where this is the relevant pivot language) Member State observa1ons

• r

applica1on to intervene Translated into all languages (pivot transla1on used where necessary)

SLIDE 13

Relevant ‘actors’ at the ECJ

• Judges, AGs and their cabinets
• Référendaires
• Lecteurs d’arrets
• Lawyer-linguists

SLIDE 14

Judges’ Référendaires

• “Generalists”
• “Knowledgeable about every area of EU law…”

SLIDE 15

Judges’ Référendaires

… I t e n d t

• t

r a n s l a t e w h a t I w a n t t

• s

a y i n t

• F

r e n c h i n s t e a d

• f

r e a l l y w

• r

k i n g i n F r e n c h … …all of my own reasoning and thinking about the case is done in my own language and then put into French when I come to the wriGng stage

• Friedman: a legal

scholar is ‘reined in’ by his/her own legal language

SLIDE 16

Judges’ Référendaires

. ” . . w

• r

k i n g i n ‘ C

• u

r t F r e n c h ’ i s a c t u a l l y e a s i e r t h a n d r a 8 i n g i n y

• u

r

• w

n l a n g u a g e – p r

• v

i d e d t h a t y

• u

d

• n

’ t a c t u a l l y w a n t t

• w

r i t e a n y t h i n g

• f

y

• u

r

• w

n ” ( i n t e r v i e w e e ’ s e m p h a s i s ) . “ . . . y

• u

a r e s

• b
• u

n d t

• w

h a t h a s b e e n s a i d b e f

• r

e t h a t y

• u

c a n h a r d l y e v e n u s e a n e w v e r b

• r

e x p r e s s t h e s a m e t h i n g i n a s l i g h t l y d i ff e r e n t w a y i n c a s e t h e G T I d

• e

s n ’ t p i c k i t u p . J u d g m e n t s a r e G m e

• c
• n

s u m i n g b u t m

• s

t a r e e a s y t

• d

r a 8 b e c a u s e i t h a s a l l a l r e a d y b e e n s a i d b y t h e C

• u

r t – m a y b e

• n

c e i n fi v e

• r

s i x y e a r s a c a s e w i l l c

• m

e a l

• n

g t h a t m i g h t h a v e

• n

e s i n g l e p a r a g r a p h s a y i n g s

• m

e t h i n g c

• m

p l e t e l y n e w

• r

d i ff e r e n t ” .

SLIDE 17

DraYing in French

“because we are wriGng in a foreign language there is a tendency to do a lot of ‘cu[ng and pasGng’ and so the style [in which the Court’s judgments, orders etc. are wrieen] reproduces itself” “Working in a language that isn’t your own makes you slower but it is not especially difficult because the Court has its own style that you just rigidly follow.”

SLIDE 18

DraYing in French

“Dra8ing in a language that is not your mother tongue makes a big difference to the way that you write. When you write in your mother tongue it flows more naturally, it is an unconscious exercise (language-wise), words and phrases flow from associaGons made by your brain by drawing on a lifeGme’s use of the language... When you are wriGng in a language that is not your mother tongue you have to boil down the semanGcs of what you want to say into one thread, into the essenGal of what you want to say – then you have to put your sentences together and you end up using clumsy and clunky connecGons...”

SLIDE 19

Language and Style Constraints

“We must dra8 using the language that has been used by the Court for over 50 years…” “We are under pressure to cite ‘word-for-word’ when taking material from source documents… in parGcular from past judgments…”

SLIDE 20

Language and Style Constraints

“…what you are dealing with is the rule of law in a legal system that is s1ll developing, therefore it is important to use the same terminology and phrases all of the 1me, in par1cular because that legal system is expressed in many different languages…”

SLIDE 21

The Pressure of Computers – Translatability

“.. it has become important to cite enGre phrases instead of merely referring to them or even

• paraphrasing. Then that phrase will be translated

sentence-for-sentence since there is the danger that the text ‘pulled up’ by the [computer] might not fit into the context of the case in hand unless every single word is exactly the same. There is a huge pressure for one single word to be translatable into another single word, which of course is rarely the case…”

SLIDE 22

Thinking in pre-fabricated phrases

SLIDE 23

Thinking in pre-fabricated phrases

“...as a starGng point... I scan my glossary of French terms and phrases frequently used by the Court and find something that covers the gist of what I want to say...”; “I will usually have a basic idea in my head of the direcGon I want to go in and what I want to say and then I use the set phrases that I have collated in my glossary to start me off and shape what I write...”.

SLIDE 24

Language and Style Constraints

• A posi1ve?:

“In your own language you have a huge choice of words and phrases and so there is more risk of making a mistake where you are dra8ing a judgment concerning an area of EU law that you may not be expert in...”

SLIDE 25

Language Constraints: Developing Precedent in EU Law?

“...decisions of the Court are treated as ‘stare decisis’ [sic] even though, on paper, those decisions are not binding on future decisions of the Court... someGmes it seems that precedent is even more binding at the Court than it is in a common law country!” (interviewee’s emphasis). “ . . . p h r a s e s a r e c h i s e l l e d

• u

t

• f

t h e r

• c

k f a c e

• f

t h e E u r

• p

e a n C

• u

r t R e p

• r

t s a n d c

• n

s i d e r e d t

• b

e i m m u t a b l e – t h e r e i s a d e f a c t

• s

t a r e d e c i s i s ” .

SLIDE 26

Some Conclusions

• We should not ignore this linguis1c aspect of

the produc1on of ECJ case law

• There’s more to the development of

jurisprudence/case law than what is necessarily intended by courts