The Language of Competition Law E-Book

AAVV

• Herausgeber: Publicacions de la Universitat de València
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 104

Veröffentlichungsjahr: 2024

Beschreibung

El libro que se presenta bajo este título, The Language of Competition Law, constituye el resultado de unas jornadas de formación de jueces y fiscales en Derecho de la competencia.

Leseprobe

The Language of Competition Law

DEFCOMCOURT 3

Carmen Estevan de Quesada & Miguel Martínez López

Universitat de València

Funded by the Training of National Judges Programme of the European Union

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the publisher, or as expressly permitted by law, or under terms agreed with the appropriate reprographic rights organization (CEDRO- http://www.cedro.org).

© The contributors, 2019

© Universitat de València, 2019

ISBN: 978-84-9133-750-8

Digital edition

CONTENTS

Chapter 1. The Language of Competition Law

Chapter 2. Key Legal Concepts of Competition Law

Chapter 3. Materials

Appendix 1

Appendix 2

Course evaluation

Chapter 1. The Language of Competition Law

Miguel Martínez López

Full Professor of English Studies

University of Valencia

“Judges are philologists of the highest order.” Chief Baron

Pollock. Pollock, C.B., Ex parte Davis (1857) 5 W. R. 523.

I. Introduction

It is reasonable to assume that human beings had language long before they had law (Tiersma 2008: 7) and, at the same time, it is impossible to conceive law without language, as it is also impossible to think about languages without rules. As soon as the ancient Babylonians, five millennia ago, created writing, they began to use it for legal purposes, writing contracts in clay tablets and statutes in stone stelae. Today and tomorrow we will be exploring that key relationship between language and the law, law and language, specifically the language of competition law. We hope the experience will be both dulce et utile; useful, because norms cannot exist without the ability to precisely describe them through language, and awareness of the characteristics of professional legal English is essential in carrying out the business of law (Tiersma 2008: 11); sweet, because daily routines will be kept at bay for a few hours in order to deepen into the intricacies of legal English in the field of competition law. Legal texts, particularly when written in a language other than the mother tongue, are generally considered difficult to read and understand; in the words of Risto Hiltunen (2012: 39) “in order to provide a firm foundation for legal decision-making processes, which have to be systematic and just, the text of the law needs to be clear, explicit, and precise. It is only to be expected that such strict conditions will impose equally strict requirements on the design of the language of legal texts. Legal syntax is distinctly idiosyncratic in terms of both the structure and arrangement of the principal sentence elements. When we look at legal language above the level of the sentence, we have to deal with the level of discourse.”

However, why English… at these troubled times of Brexit’s doomsday scenarios? The ECJ judges have used French for their internal deliberations since its establishment in 1952, and we can say French is still the first language of the Court. First of all, after Brexit, there are numerous voices that propose to make English, even more…, the language of reference in all European Union institutions. While, at this time, ECJ judges deliberate in French, pleadings and written legal submissions are first translated into French, and the judgment is drafted in French (the Advocates General, by contrast, may work and draft their opinions in any official language, as they do not take part in any deliberations) a spokesperson from the ECJ has recently said the court had launched a study to examine the possibility of using English in addition to French for some cases as it is “constantly reflecting on the way it can preserve and improve its efficiency” as it handles an increasing number of disputes... Evidence suggests that, quite paradoxically, as Great Britain leaves, English is on the rise in the EU and small print in the proposed 2021-27 EU budget confirms this: “The withdrawal of the United Kingdom will result in a limited reorientation of some functions within the administration, but the scope of activities will not change,” […] “Translation and interpretation services in the English language will also remain unaffected.” (De la Baume, 2018) Basically English, already a global language with near two billion speakers, will most probably continue to be a lingua franca, also in the EU, even if the worst-case scenarios (a no-deal Brexit or a hard-Brexit) do happen; in any case, English will continue to be one of the three working languages, may be even a more predominant one, since it will be an official language of only 1% of the EU population and the second language of all others; therefore, English certainly enjoys a “significant competitive advantage” -to use the words of the CFI´s Judgment in the Microsoft case (Grand Chamber) 17 September 2007 Case T-201/04. A final, though oblique, piece of evidence stems from the fact that, when we google, for example, “competition law”, we obtain about 360 million search engine results (SERs); when “droit de la concurrence” is googled, we get c. 10,7 million SERs; if we try “derecho de la competencia” we get 26,7 million SERs. These figures, in the three languages, contain both types of content, organic and paid results and different spelling options, when appropriate.

About “the language of competition law”, the crucial influence of certain words, metaphors or narratives has already been noted in the past by some of the most prominent antitrust scholars. According to Alfonso Lamadrid (2018), excellent examples of this can be found, among others, in the influential piece by late Prof. Areeda on “Essential Facilities: An Epithet in Need of Limiting Principles”; also in “Antitrust Doctrine and the Sway of Metaphor” by Michael Boudin; or in Newberg’s “A Narrative Construction of Antitrust”. On a lighter note, Prof. Daniel Sokol (Univ. of Florida Law School) also wrote this year “The Language of Sex and Antitrust” on the sexualized language of competition law; he tracked the following terms in both the JLR and ALLCASES databases in Westlaw: “naked” and “hard-core” cartels (the neutral cárteles intrínsecamente nocivos in Spanish scholarship and case-law), naked restraint of trade, naked market division, abuse of a dominant position, etc. He concluded they were widely used from the 1950s and that “academics and DOJ staff are far more into sexualized antitrust terms than judges, particularly when referring to ‘hard core’ cartel offenses”.

Another less anecdotal instance of the contemporary relevance of the study of the language of competition law can be found in the late 2018 edition of Language and Law. The Role of Language and translation in EU Competition Law, a handbook that provides an overview of EU competition law with a focus on the main developments in Italy, Spain, Greece, Poland and Croatia; this is a book that offers an in-depth analysis of the role of language, translation and multilingualism in the implementation and interpretation of the language of competition law (Marino et al., 2018).

Also from a general perspective, the overarching aim of the Law and Language at the European Court of Justice Project (LLECJ) is to elaborate a new understanding of the development of EU law by examining the process behind the production of the multilingual jurisprudence of the Court of Justice of the European Union (ECJ). Achieving that goal involves bringing together research fields which traditionally pay little attention to each other – linguistic theories, anthropological research methods and law. By analysing the relationship between law, language and translation in the jurisprudence of the ECJ, using methodological tools borrowed from fields outside of law, the LLECJ project aims to introduce a new facet to the current thinking on the development of the EU legal order. It departs from the assumption that processes, the EU culture of compromise, affect outputs through the development of a hybrid euro-language within the institutions, which is the linguistic manifestation of this cultural compromise. Unlike in the days when all judges were francophone, now ECJ jurisprudence consists primarily of collegiate judgments drafted by jurists in a language that is generally not their mother tongue.

Finally, the relevance of the connection between language and the law is also stressed by a trend in scholarship that points at the ongoing change in the legal language and cultures of EU law. Some scholars “speak of a hybridization of legal languages in the EU under the influence of EU legislation (e.g. Koskinen, 2000; Mori, 2011) and the emergence of a new European legal culture due to the Europeanisation of law (Graziadei, 2015).” Indeed, without suppressing the national Member States’ legal cultures, some authors have spoken “of a hybrid pan-European culture grounded in EU law and ius commune of Europe […]” (Bajčić, 2018: 12). They perceive that the advantages of having a sort of ‘European legal English’ is that “it does not disguise preconceptions of a legal system and is hence a useful tool for furthering EU legal culture and uniform interpretation of EU law. However, as we have seen, this by itself is no safeguard of uniform interpretation, for sometimes other languages do not use system-neutral terms, or the CJEU must intervene to determine the meaning of a concept, even if it is couched in a neutral term (see case law on the meaning of ‘‘undertaking’’ in EU competition law: the CJEU discussed the concept of undertaking: C-159/91 Poucet v. Assurances Generales de France and Pistre; C-160/91(17/02/1993) FENIN v. Commission c-205/03 (1s1/07/2006) ECR I-6295). Höfner and Elser v. Macrotron GmbHC-41/90 (23/04/1991) ECR I-1979).” (Bajčić, 2018: 19-20)

II. Objectives

The final report Study on judges’ training needs in the field of European competition law by the Academy of European Law (ERA) and the European Judicial Training Network Ecorys (EJTN) dated January 2016 concluded that “[k]nowledge of English – in particular the technical terminology of competition-law English – must be promoted as a common working language […].” (p. 68-69) This 2016 report also concluded that “[t]he effectiveness of the Programme concerning objective 4, i.e. “Developing judges’ language and terminology skills” is probably questioned to the highest extent by the evaluators. Based on the expert panel and interviews, a common understanding can be found that English is the key working language in competition law. […] pure language classes may not sufficiently raise the interest of judges as they do not always acknowledge their direct link to competition law. For this reason, the Programme should pay specific attention in focusing and tailoring the language training offers to the specific needs of the target groups in each project.” (p. 86-87)

The present seminar departs from previous experiences (e.g. EJTN Linguistics Seminars entitled “Language training on the vocabulary of competition law” held in the Slovak Republic in 2016, and in Austria 11-13 September, 2017) and fosters a truly international perspective on the emerging interdisciplinary field of language and the law, targeting best practices in the field of teaching international legal English, with a focus on the specific area of competition law. The very practical nature of this seminar, encourages attendees to compare aspects of competition law in their own jurisdictions and facilitates a hands-on approach to understanding and discussing case law. In this line of thought, we have proposed a primary source -the Coty case (C-230/2016 Coty Germany GmbH v Parfümerie Akzente GmbH, available at the multilingual database EUR-LEX)- and have also designed two work groups with a unique combination of legal and linguistic experts, who will encourage more active participation and more accurate and effective feedback.

Therefore, the main objective of this seminar is the improvement of both legal and language skills (reading, writing, listening and speaking on competition law) and the basic tool is the combination of legal content and language exercises. A secondary, but also important objective is to provide training in the use of a most useful tool, the recently launched IATE2 (Interactive Terminology for Europe, https://iate.europa.eu/ home).

Developing communication skills in the English language of Competence Law means improving each participant’s performance in the main communicative genres and linguistic functions, so that they can be applied to competition law. These functions include the following: Present information (describe and explain); structure, classify and show cohesion; give emphasis; repeat and paraphrase; anticipate information and signal transitions; give opinions; suggest, recommend and provide advice; request information; contrast information; agree and disagree; oppose concepts; compare and contrast; persuade; summarise, evaluate, and use an appropriate register. This training seminar will end with the participants’ individual presentations on a competition law case from their own jurisdictions, followed by a question-and-answer session.

III. Some characteristics of the English language of competition law.