Legal Certainty in Multilingual EU Law

Language, Discourse and Reasoning at the European Court of Justice

Elina Paunio

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317106357
• Edition: 1
• Topic: Droit
• Subtopic: Jurisprudence

How can multilingualism and legal certainty be reconciled in EU law? Despite the importance of multilingualism for the European project, it has attracted only limited attention from legal scholars. This book provides a valuable contribution to this otherwise neglected area. Whilst firmly situated within the field of EU law, the book also employs theories developed in linguistics and translation studies. More particularly, it explores the uncertainty surrounding the meaning of multilingual EU law and the impact of multilingualism on judicial reasoning at the European Court of Justice. To reconceptualize legal certainty in EU law, the book highlights the importance of transparent judicial reasoning and dialogue between courts and suggests a discursive model for adjudication at the European Court of Justice. Based on both theory and case law analysis, this interdisciplinary study is an important contribution to the field of European legal reasoning and to the study of multilingualism within EU legal scholarship.

Chapter 1
Lost in translation

Role of language in EU law-making

Translation is the official language of Europe.¹ This chapter sheds light on the techniques deployed by the Court to determine the meaning of multilingual EU law. More specifically, after addressing the role of translation in drafting EU law as well as uncertainties in law and language, we turn to the typical features of the Court’s reasoning. The chapter formulates a claim that while insufficient without support from other types of argument, teleological reasoning is in fact necessary to make sense of statutory texts that evolve into complicated and multifaceted procedures of drafting and translation.

The Court’s judgments interpreting EU law are based on translated originals to a large extent drafted by the European Commission Translation Services. In fact, intertwined with the policy of linguistic equality is the idea that translations are not really translations at all: they are equivalent official language versions. From the viewpoint of judicial interpretation, this is of particular significance since language versions are all equally authentic when judges or other competent authorities interpret and apply EU legislation. Officially, therefore, language versions are drafted, not translated simultaneously. In this sense, language versions are ‘independent’ in that they are not considered as derivative of any other version.² Irrespective of any qualitative characteristics, all versions are automatically assumed to be equivalent, or in other words, of equal value and meaning in judicial interpretation.

From this it follows that EU legal translation possesses a high symbolic value. Arguably, the communicative function of translation may in some cases be subordinate to its symbolic function: instead of conveying a particular message, the primary function of a translation may simply be existential: it must simply exist. In this sense, it might be said that EU language policy promotes ‘existential equivalence’. Indeed, rather than conveying a message or facilitating communication, translation serves as proof of linguistic equality.³

Fiction of equivalence in translated EU law

Law forms a highly institutionalized form of communication, regulating and giving specialized meaning to social action by using natural language.⁴ Problems of translation specifically related to legal texts are said to be connected with the fact that legal language is closely connected to a given legal system and legal culture: in other words, legal language is said to carry and be an expression of a particular legal system and culture.⁵ Traditionally, for both institutional and systemic reasons, legal texts have been regarded as particularly difficult to translate.⁶ For some, the intimate linkage between law, system and culture forms a problem for uniformization of laws that cannot fully be resolved in translation.⁷ For others, the very existence of multilingual EU law based on translation suggests that although language admittedly forms a barrier to intercultural communication, it is a barrier that can be overcome.⁸ In addition to law-specific translation issues, other problems can also be identified: these relate to the very nature of all natural languages, which are characterized by ambiguity and vagueness.⁹

EU linguistic policy aiming at equality of languages presupposes equivalence of language versions. Yet, equivalence – understood as identity – is an illusion. At best, legal translation – just as any translation – is only approximation.¹⁰ Within the legal context, however, the basic assumption of modern translation theory – that all translation is only an attempt to present information about the source text – has not been fully accepted.¹¹

Indeed, the imperative of equality among citizens as well as Member States in the EU context is often referred to as the guiding principle of legal translation. Certainly, translation may be regarded as a means of assuring equality between those concerned by a legal text (be it a statute, a judgment, a contract, or some other type of legal text): translations give access to legal documents to those who would otherwise not have access to them. In the context of EU law, translation forms a prerequisite for direct effect.

In legal translation, it is now commonplace to emphasize the importance of striving for a translation that achieves the intended legal effects and therefore the intended meaning in practice.¹² On this understanding, while legal translators are not expected to produce texts that are equal in meaning – due to the illusory character of equivalence understood as identity – they are expected to produce parallel texts that are equal in legal effect. That is, these parallel texts are expected to be interpreted and applied in the same way irrespective of the legal systemic context.¹³

However, it seems unclear how translators can assure equal legal effect: prejudices and culture affect the way legal texts are interpreted so that each interpretation forms in and of itself a translation too.¹⁴ From this viewpoint, it appears rather difficult to imagine a situation where the translator would be able to ensure that the source text as well as the target text would be interpreted and applied in the same way irrespective of the language and legal system in which the interpreter is situated.¹⁵

Put differently, EU law forms an amalgam of different systems that have evolved separately and that are generally confined within national and linguistic boundaries. For a translator, this highlights the following problem: how can equivalents be found for culture-bound terms? Indeed, such systemic diversity is often given as another argument for the particular difficulties inherent in legal translation.¹⁶ Nonetheless, looking at legal language from the point of view of translation theory, these characteristics do not make legal translation per se particularly difficult: natural languages form an open-ended means of communication acquiring meaning in context, in use.¹⁷ Terminological difficulties, often held to be of particular importance in the context of law too, are present inter alia in many other areas of special-purpose translation.¹⁸

Nonetheless, while the recent trend in translation studies has been to undermine the importance of equivalence and concentrate, inter alia, on the communicative function of translation, EU linguistic policy – at least in relation to EU legislation – is based on the presumption that different language versions are equivalent.¹⁹ Similarly, the idea that source and target texts are equivalent (at least in effect) remains the underlying presumption in legal translation in general.²⁰ Although it might appear plausible to say that striving for equivalence is necessary for assuring equal treatment before the law, achieving it, in concreto, in the EU seems less clear. Indeed, the equivalence relation is presupposed to exist not only with the source text but also with the other language versions: all language versions convey the same meaning. For the purposes of equality, exact equivalence is a necessary fiction.²¹

Despite the equal value of official language versions in judicial interpretation, equivalence is sometimes reduced to mere visual equivalence. Arguing that official discourse concerning multilingualism is far from reality, Anthony Pym stresses the symbolic role of translation in the EU. According to Pym, official discourse on translation is produced mainly to ‘keep the masses and academics happy’.²² Equivalence is symbolic. This trait becomes visible when one considers how directives and other EU legislative instruments are drafted: the number of paragraphs has to match, and headings and subheadings have to be located in the same place as in other language versions. In fact, the policy of linguistic equality reduces translation to literal rendering and consequently equivalence to linguistic correspondence.²³ Taking account of the visual constraints in EU translation, what is of particular importance is that the language versions look identical.²⁴

In a nutshell, translation of EU legislation is not intended to communicate a message to a particular interlocutor, but rather to produce law. In other words, translated EU legislation aims at producing a textual representation for norms resulting from the law-making process, without a clearly defined communicative function. Translated EU legislation simply constitutes law so that translations are law.²⁵ These translated texts govern legal practice and function as the basis for the production of other texts, such as the Court’s judgments in which law created by means of translation is interpreted and applied.²⁶ After being translated into all official languages, these translated texts become legislation: legal texts in their own right.

To problems concerning system- and culture-bound terminology in law can, in the EU context, be added creation of a new variant of all official languages, which adds further problems to the equation: this so-called ‘Euro-speak’ has moulded structures and created new words in each language.²⁷ Indeed, even when we are talking about concepts belonging to the autonomous sphere of EU law, some confusion as to their meaning (intention and extension) may nonetheless exist when ‘imported’ into the national context by national judges and authorities. These concepts, which are situated at the very core of EU law, include, inter alia, supremacy, effective judicial protection, direct effect, regulatory acts, legitimate expectations, effectiveness, measures having equivalent effect, mandatory or overriding requirements and direct and individual concern. In this sense, legal terminology used and interpreted in different legal systems reflects profound differences existing between various systems as well as legal conceptions of lawyers in each of these systems.²⁸

Clearly, therefore, even if we translate – to the best of our abilities – terms such as direct effect, effective judicial protection, legitimate expectations, and regulatory act into different languages, it might be that these terms will not convey the same meaning to lawyers in different legal systems if no shared theory exists of, for instance, regulatory acts. Importantly, therefore, no matter how well terminology itself is translated, it will not necessarily mean that the legal effect is the same in different legal systems.²⁹ Additionally, the conceptual autonomy of EU law adds another challenge to this uneasy relationship: in the context of EU law, terms conveying a specific meaning in domestic law – if they indeed exist in the domestic framework – may refer to altogether different concepts when used in the EU context.

Indeed, divergence from one language version to another may be expected for at least three reasons...