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

Linguistic Precedent in the Judgments of the CJEU Karen McAuliffe University of Birmingham, UK @dr_KMcA

Law and Language at the ECJ Development of ‘precedent’ in Producing a ECJ judgments multilingual jurisprudence Precedent: • a conscious jurisprudential strategy • a sociology of the ECJ • mechanics of jurisprudential drafting • has the institutional model changed post 2004? BUT • a linguistic cultural compromise at the Court? Translation adds another variable Reinforcement of constitutional pluralism? Is there continuity across languages? Do different scholars construct different meanings and precedents from different linguistic constructions? The changing role of the AG • question of persuasive logics • Deliberative effect of language What does this mean for the development of EU law?

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

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

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

What is Precedent? • Conscious jurispruden1al strategy • Mechanics of jurispruden1al draYing

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

Transla1on at the ECJ BG BG ES ES CS CS DA DA DE DE ET ET EL EL EN EN WORKING LANGUAGE: FRENCH FR FR GA GA HR HR IT IT LV LV JUDGMENT LT LT HU HU MT MT NL NL PL PL PT PT RO RO SK SK SL SL FI FI SV SV

Transla1on at the ECJ BG BG ES ES CS CS DA DA DE DE ET ET EL EL WORKING LANGUAGE: FRENCH EN EN FR FR GA GA HR HR IT IT LV LV JUDGMENT LT LT HU HU MT MT NL NL PL PL PT PT RO RO SK SK SL SL FI FI SV SV

Transla1on Regime at the Court Pivot transla1on (a) Documents draYed in ‘new’ languages Translated into French Order for reference Translated into all For a preliminary ruling other official languages Translated into pivot language

Transla1on Regime at the Court Pivot transla1on (a) Documents draYed in ‘new’ languages Translated into language of Translated into French procedure (where this is not the relevant pivot language) Member State observa1ons or applica1on to intervene Translated into language of procedure (where this is the relevant pivot language) All other documents Translated into French

Transla1on Regime at the Court Pivot transla1on (b) Documents draYed in ‘old’ languages Translated into all languages Order for reference (pivot transla1on used for a preliminary ruling where necessary) Translated into French Translated into Language of procedure (i.e. In cases where language of Member State observa1ons procedure is a‘new‘ language and or the original document is not draYed applica1on to intervene in the relevant pivot language) Translated into Language of procedure (where this is the relevant pivot language)

Relevant ‘actors’ at the ECJ • Judges, AGs and their cabinets • Référendaires • Lecteurs d’arrets • Lawyer-linguists

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

Judges’ Référendaires • Friedman: a legal scholar is ‘reined in’ e t a l s n o a t r n t by his/her own legal i o y t a d s n o y e t l t l t a I n language … e a r w f o I d t a a h e w t … s …all of my own reasoning n h i c h n c e n r e F r n F i and thinking about the g n i k r o w case is done in my own language and then put into French when I come to the wriGng stage

Judges’ Référendaires . ” . . w o r k i n g i n ‘ C o u r t F r e a n c c t u h ’ a i l l s y e a s i e r t h a n d r a 8 o i n w n g i l a n n y o g u u a r g e – p r o v i d d e d o n t h ’ t a a t c y t u o a u l l y w a n t t o w a r n i t e y t h i n g o f y o u r o w n ” ( i n t e r v i e w e e ’ s e m p h a s i s ) . e r f o e b d a i s e n e b s h a a t h w o t d u n s o s b r e o p s e x e r a r o u b o e r y v . . . w “ e n a e s u n v e e y d l r h e h a t e a n a s c c u n o i y a y a t w h t n t e e r ff d i y l h t g s l i a n i g n h i t - m e m e s a G e e h a r t s n t e m g d u J p . u t s k i a c h p i t t e i n ’ s e s a u o c d e I b G T 8 r a d o t y a s e e a r t s m o i n u t e b c g o n n e m i b y s u m a n o – c t u r o C e h y t b d a i s n e h t b e g m i d y a t e h a a l r t g a l l n l o a e m o c i l l w e s c a a s r e a y x g s i n r h i o e t e m fi v o s g n y i s a h p a g r a a r p e g l n s i e n o e a v h ” . n t e e r ff d i r o w e n y e l e t p l m c o

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 “Working in a language [in which the Court’s that isn’t your own makes judgments, orders etc. are you slower but it is not wrieen] reproduces itself” especially difficult because the Court has its own style that you just rigidly follow .”

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...”

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

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…”

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…”

Thinking in pre-fabricated phrases

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... ”.

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... ”