Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

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.

The Limitations of a Multilingual Legal System

“…47 This paper, together with previous work by the author [16][17][18][19][20][21] 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.…”

“…In addition to the, often complicated, legal reasoning and application of EU law throughout that process, those actors are drafting the various documents in a language which for most of them is not their mother tongue [17,19]. Those documents (judgments, orders, AGs' opinions) -the 'output' of the Court -are then translated into the other 22 official EU languages, and, in the case of judgments, more often than not the authentic version of that judgment will be a translation.…”

“…documented by the present author [16][17][18][19][20][21]. While the role of the lawyer-linguists who produce the translations may be "the perfect synthesis of a lawyer and a linguist", there are nonetheless many difficulties which arise due to the ambiguity and approximation inherent in translation [17,[20][21].…”

“…While the role of the lawyer-linguists who produce the translations may be "the perfect synthesis of a lawyer and a linguist", there are nonetheless many difficulties which arise due to the ambiguity and approximation inherent in translation [17,[20][21]. In addition to those classic problems of translation (and legal translation in particular) such as ambiguity, translation of 'untranslatable' legal concepts, the effects of translated legal texts etc., translation at the CJEU is also affected by the role perceptions of lawyer-linguists who struggle to balance a dual professional identity.…”

“…Such 'engagement' on the part of the CJEU involves the interpretations and application of EU law Another example raised by a large number of those interviewed for the present paper is the unavoidable approximation involved in rendering the legal notion of a "trust" in a language other than English. Even the word "contract" in English does not fully correspond to "contrat" in French or "vertrag" in German since (among other distinctions) a "contract" in 17 Similarly, see infra re Replica Sports Kit cases.…”