Precedent At the ECJ: The Linguistic Aspect
Oxford University Press
The development of a de facto precedent in EU law has recently been the subject of significant academic debate, centring round questions of what it means for a supreme court to ‘make law’ and when it is possible to say that its decisions are ‘precedents’. While there is no official doctrine of precedent in EU law, the Court of Justice of the European Union (CJEU) does on occasion appear to regard its previous decisions as establishing law that should be applied in later disputes and commentators generally agree that it appears that the CJEU has introduced a system of precedent and ‘tied down’ national courts without establishing a formal hierarchy in the strict sense (see, in particular, the Köbler and Larsy decisions). However, there is one important aspect of the CJEU’s multilingual case law that has been largely ignored in such debates: the fact that that case law is drafted by jurists in a language that is generally not their mother tongue and undergoes many permutations of translation into and out of up to 23 languages. Furthermore, the authentic version of each judgment is generally a translation of the text deliberated on (in secret deliberations) by the judges. The process behind the production of the CJEU’s multilingual jurisprudence should not be ignored. Thus, this paper analyses the operation of the CJEU and investigates the, thus-far wholly ignored, linguistic element in the development of a de facto precedent in the case law of that court.
This is the author's version of a work accepted for publication by Oxford University Press. A definitive version was published in : Law and Language: Current Legal Issues Volume 15 Michael Freeman and Fiona Smith http://ukcatalogue.oup.com/product/academic/series/law/cli/9780199673667.do
Current Legal Issues: Law and Language ed., Vol. 15, chapter 29.