The Linguist is a languages magazine for professional linguists, translators, interpreters, language professionals, language teachers, trainers, students and academics with articles on translation, interpreting, business, government, technology
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10 The Linguist DECEMBER 2014/JANUARY 2015 www.ciol.org.uk THRELFORD LECTURE transport operation, being as it were, a unit of such transport, performed by an air carrier, which fixes its itinerary.') now the Court had told us what a flight is; the flight that was cancelled departed from an airport in a third country; and, as a result, Dr schenkel didn't get his €600. This case demonstrates why the Court cannot make decisions on the basis of a textual analysis of where a comma appears. You are not going to find the comma in the same place in all the language texts. You may be lucky to find something like the same words. Consequently, the Court can't interpret texts literally; it has to look at the purpose, the aim and the objective of the legislation – what is called a 'teleological' approach. The reason for such an approach is precisely this linguistic variation. Limiting the output of the Court The Court naturally receives lots of documents (such as orders for reference, pleadings and observations drafted by lawyers), and every Member state has its own wonderful traditions as to how to write these documents. I am possibly contaminated by my European experience, but I now find the English style occasionally rather elaborate and confusing. (However, the German tradition leaves me equally puzzled, seeming to go round in concentric circles.) All these documents need translating. Orders for reference need to be translated into all 24 languages, so that the Member states know what the Court has been asked and can intervene if they want to. pleadings have to be translated into a single working language: French. For this, we depend on our (dual-qualified) lawyer- linguists, who are our translators of the written word. I couldn't do my job without them. Everything I read, I look at through the eyes of my lawyer-linguists. They handle more than a million pages of translation (inbound and outbound) every year. This means that we have to limit our output. For example, the Advocates General have an unofficial agreement with DG Translation that we will write a maximum of 40 pages per Opinion in draft form, excluding competition appeals. We also try to limit how much of the incoming documents gets translated. Thus, a pleading will be translated, but the annexes won't. so unless the huge stack of annexes happens to be written in English or French, they won't necessarily be studied in detail. I'm going to tell you two cautionary tales. One of my last cases at the Bar, before I went to the Court, was a VAT carousel fraud (the documents showed export and thus no VAT due, but no export had taken place). After an uphill fight for five days, I persuaded the judge to make a reference to the CJEU. since I had worked at the Court before, I was a little dismayed when he said he would simply write the questions as a schedule and annex them to his judgment. The judgment was 70 pages long. It began with a joke: 'This case is about the immobility of mobile phones'. That's not what the Court wants as an order for reference. History doesn't record what was said inside DG Translation when this 70-page monstrosity arrived: but it was a much shorter internal summary – not the judge's own words – that was translated into all the EU languages. My second example is more complicated. The original long and rambling order for reference was written in romanian. A short summary was duly made and translated into all the languages except French. The standing orders to the French translation section are different: they are meant to do a 'full translation', but they also have strict instructions about omissis. They are told (for example) that if something seems to be purely national procedure, they should leave it out. so we had three versions of the order for reference. Depending on which version you were using, your assessment of what would be a sensible proposal for handling the case would be very different: either the case was inadmissible because there wasn't enough information, or it was big and important, requiring the Grand Chamber, a hearing and an Opinion. As Advocate General (and someone with an obsession with language), I tried to decipher the key details about national procedure that were hidden in the romanian text and became convinced that the case really did look important. Eventually it ended up in the Grand Chamber. The view of the legal issues raised by the reference, and of the right way for the Court to handle it, was not independent of language. In fact, it was driven by the language. French thinking Within the Court we work in French. That has its own internal impact because it affects everything that we do. For example, I sit on our rules of procedure Committee, which formulates the procedural rules under which the Court works. Its thinking is quintessentially French law. The thinking goes with the language. Whenever you suggest a piece of drafting, you have to formulate it not only linguistically in French, but also intellectually in French, so your colleagues can understand what you are proposing. It also affects our drafting for every case in which a judgment is being written. These drafts are prepared with the help of the judges' efficient, hard-working référendaires (judicial assistants). However, in the délibéré, in which the judges consider the draft, there are no interpreters; it is just the judges discussing in French – a language they master to a greater or lesser degree – what to do and how to take colleagues' points on board in order to reach a consensus. CJEU judgments may seem to be built from Lego bricks – known formulae that are bolted together. That is partly because if you tried to do something different, people would be very suspicious: 'Why are they not using the standard phraseology?', 'What are they trying to slip past us?'. There is a reason that we sometimes write very clunky judgments. It's to do with language. A challenge for interpreters Our interpreters are absolutely wonderful. They are not trained lawyers and they have to deal with a bewildering range of subjects. On three successive days, they could be doing a sequence of three cases involving refugees, VAT and then export refunds. The technical vocabulary for those three areas is completely different. Although I am comfortable in several languages on an ordinary basis, I can't sit in a hearing and understand a German lawyer explaining, to me, in German, about the process for cutting meat in a slaughter house. To do so I would need time – which I don't have – for linguistic preparation. Consequently, in order to understand what is happening at a hearing that is not in English or French, I need interpreters. How well our interpreters can do their job depends on the lawyers who are speaking. For example, when there is an urgent procedure, Member states are not allowed to submit detailed written pleadings, because we are trying to move quickly. Very often, a Member state's agent will turn up with a speaking text that is written in the dense, convoluted style of a written pleading, which will be read very quickly so as not to waste the Court's time.