Language and Law

Silvia Marino · Łucja Biel 

Martina Bajčić · Vilelmini Sosoni Editors

Language

and Law

The Role of Language and Translation in

EU Competition Law

Language and Law

Silvia Marino • Łucja Biel • Martina Bajčić •

Vilelmini Sosoni

Editors

Language and Law

The Role of Language and Translation

in EU Competition Law

Editors

Silvia Marino

Department of Law, Economics and

Culture

University of Insubria

Como, Italy

Łucja Biel

Institute of Applied Linguistics

University of Warsaw

Warsaw, Poland

Martina Bajčić

Faculty of Law, Department of Foreign

Languages

University of Rijeka

Rijeka, Croatia

Vilelmini Sosoni

Department of Foreign Languages, Translation

& Interpretation

Ionian University

Corfu, Greece

The Project is co-financed by the Commission of the European Union, DG Competition (Ref.: HT:

4983, Call for proposals 2015: Training of National Judges in EU Competition Law and Judicial

Cooperation between National Competition Law Judges).

ISBN 978-3-319-90904-2 ISBN 978-3-319-90905-9 (eBook)

https://doi.org/10.1007/978-3-319-90905-9

Library of Congress Control Number: 2018959222

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Contents

Introduction: The Role of the Language in EU Law ................ 1

Silvia Marino

Part I Public and Private Enforcement of EU Law

in a Cooperative Perspective

On Economic Rationale of Competition Policy .................... 9

Flavia Cortelezzi

An Overview of the Recent Application of EU and National

Competition Law by the Italian Competition Authority . . . . . . . . . . . . . 27

Paolo Caprile

The CJEU Case Law After Preliminary Ruling on Behalf of Private

Enforcement of EU Competition Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Mar Jimeno-Bulnes

The Direct Effect of EU Competition Law: From Regulation

No 1/2003 to Directive 2014/104/EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Marina San Martín-Calvo

Jurisdiction and Applicable Law in Follow-on Actions . . . . . . . . . . . . . . 87

Paolo Bertoli

Contemporary Trends in International Law in Relation to the Protection

of Individuals from Multinationals’ Malpractice: Greek Competition

Law After the Implementation of EU Directive 2014/104 . . . . . . . . . . . . 103

Sotirios S. Livas

EU Competition Law in the Aftermath of Directive 2014/14

and Its Implementation in the Republic of Croatia . . . . . . . . . . . . . . . . . 115

Ana Pošćić

v

EU Competition Law After Directive 2014/104/EU

and Its Implementation in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Silvia Marino

Part II Linguistic Aspects of Drafting, Translating, Interpreting

and Implementing EU Competition Law

Legal Languages in Contact: EU Legislative Drafting

and Its Consequences for Judicial Interpretation . . . . . . . . . . . . . . . . . . 163

Agnieszka Doczekalska

Language and Translation in EU Competition Law: Insights

from English, Greek, Italian and Spanish Versions

of Legislative Texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Vilelmini Sosoni

A Mutual Learning Exercise in Terminology and Multilingual Law . . . . 207

Martina Bajčić and Adrijana Martinović

Binomials in EU Competition Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

Katja Dobrić Basaneže

Collocations of Terms in EU Competition Law: A Corpus Analysis

of EU English Collocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

Łucja Biel, Agnieszka Biernacka, and Anna Jopek-Bosiacka

The Glossary of EU English Competition Collocations and Terms . . . . . 275

Łucja Biel, Agnieszka Biernacka, and Anna Jopek-Bosiacka

Phraseological Profile of Judgments: Complex Prepositions

in EU Competition Law Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325

Dariusz Koźbiał

Plain English and the EU: Still Trying to Fight the Fog? . . . . . . . . . . . . 359

Arianna Grasso

vi Contents

Introduction: The Role of the Language

in EU Law

Silvia Marino

1 Multilingualism in the EU as a Tool to strengthen

Democracy

The European Union’s (EU) legal system raises many challenges for the lawyer. One

of those is multilingualism. All the legal acts and measures must be drafted in all the

24 official languages of the EU.1 It is not the first example of a multilingual system,

but it is surely the most prominent.

The idea behind this choice—i.e. the use of all the national official languages as

EU official languages—is the promotion of the democratic principle within the

EU. The possibility to use every official national language is a necessary tool in

order to put EU citizens and institutions into contact. Furthermore, it makes some of

the rights granted by the EU Treaties effective.

Article 24 of the Treaty on the Functioning of the European Union (TFEU) grants

every EU citizen the right to address the EU institutions in any EU official language,

and to receive an answer in the same language. This right is an integral part of the

democratic principle, since it aims at creating a stable link between the citizens and

the EU. Still, it would be a rather theoretical right, if the citizens were obliged to use

a foreign language. The opportunity to use native languages makes it easier to

contact the EU institutions effectively.

The same is true if we think of the rights to file a complaint with the European

ombudsman (Article 228 TFEU), and to address a petition to the European Parlia￾ment (Article 227 TFEU).

S. Marino (*)

Department of Law, Economics and Culture, University of Insubria, Como, Italy

e-mail: [email protected]

1

Regulation No 1, determining the languages to be used by the European Economic Community, as

amended (OJ L 17, 6.10.1958, p. 385).

© Springer Nature Switzerland AG 2018

S. Marino et al. (eds.), Language and Law,

https://doi.org/10.1007/978-3-319-90905-9_1

1

Furthermore, all the legal binding acts addressed to the general public must be

drafted in all the official languages. This rule safeguards the citizens’ right to be able

to understand the law: everyone can have a direct and effective access to the law. The

Court of Justice of the European Union (CJEU) has already made it clear that an EU

binding measure does not produce any effect against the citizens of a Member State,

until it is published in the Official Journal in the official language of that Member

State.2

EU citizens might have an active role within the EU, too. Under Article 2 of

Protocol No 2 on the Application of the Principles of Subsidiarity and Proportion￾ality, the Commission shall consult widely before proposing legislative acts.

According to the general praxis, the Commission publishes a Green Paper, a

non-binding document wherein the institution assesses the problem to be tackled,

suggests possible solutions and submits questions to the civil society. Everyone is

invited to give their view on the topic, following the guidelines and the queries

presented by the Commission. The right to take part to consultations would prove,

once more, highly ineffective if the Green Papers were written—and if the answers

were acceptable—only in selected languages.

In this framework, the European ombudsman has already made it clear that EU

citizens must be granted an effective right to take part to consultations.3 Indeed, it is

not reasonable to expect participation without understanding: if the consultations

kick-off documents are drafted only in English, all the non-English speaking citizens

are excluded, thus preventing from reaching the target of a large consultation. If

there is no obligation to publish everything in every official language, restrictions

must be objectively justified. Limited financial resources and time constraints do not

amount to insurmountable difficulties in order to translate the consultation docu￾ments into all the official languages. The institutions must at least grant full or partial

translations upon request, or give the basic information on the consultation in all the

EU official languages.

2 Interpretation of Multilingual Treaties

Promoting the democratic principle through the use of native languages creates

practical and economical difficulties related to the translation and the interpretation

of all the EU legal binding and general measures. Indeed, the institutions use a

selected group of working languages (usually English, French, German, to a more

limited extent Spanish and Italian, and in the next future Polish), and the first draft of

legal acts is submitted in one of those languages. Nevertheless, the transposition of

2

Case C-161/06 Skoma Lux [2007] ECR I-10841, ECLI:EU:C:2007:773. 3

Decision of the European Ombudsman closing his inquiry into complaint 640/2011/AN against the

European Commission, 4 October 2012. Available via EUROPEAN OMBUDSMAN. https://www.

ombudsman.europa.eu/en/cases/decision.faces/el/12009/html.bookmark. Accessed 15 Apr 2018.

2 S. Marino

legal concepts into many languages is not an automatic operation. Every legal

concept has a precise meaning that could even not exist altogether in another legal

system. The translation must be as accurate as possible: the output is legally not a

translation, but an official version of the act. The existence of a number of official

versions might bring interpretative concerns for the jurist.

According to the 1969 Vienna Convention on the Law of the Treaties, all the

official languages have the same relevance. Therefore, the interpretation of a rule in

an international Convention must take all the linguistic versions into due consider￾ation, and look for a meaning that is acceptable in all of them (Article 33 of the

Convention). Usually, international Conventions are written in no more than three

languages. The United Nations Organisation has six official languages (English,

French, Spanish, Russian, Arab, and Chinese). The challenge within the EU, with its

24 official languages, is apparently bigger.

The interpretation of EU Law does not disregard this fundamental general rule of

international law. Many examples demonstrate that the CJEU analyses different

linguistic versions in order to interpret the same rule, in all the fields within the EU

competence. One of the most recent and meaningful examples is the JZ case.4 The

primary concern related to the meaning of the word ‘detention’ for the purpose of

Article 26(1) of the framework Decision 2002/584 on the European arrest warrant.

The Court scrutinised six different linguistic versions (German, Greek, French,

English, Polish, and Dutch), dividing them into three groups, in order to demonstrate

that the literal interpretation was not enough in order to reach a unique meaning of

the word. Indeed, it gave rise to three possible different interpretations of the word.5

3 The Procedure for Preliminary Ruling in the EU

In this framework, the relevance of the procedure for preliminary ruling in the EU

should be immediately clear. Only a central judicial body can have the necessary

competence to duly scrutinise a multilingual text and to analyse its legal meaning

and impact. An open oriented and comparative perspective can be more easily

granted within a European body: the CJEU’s judges come from all the Member

States, and each of them can take advantage of the cooperation of other jurists—as

the Advocates general and their collaborators.

This is one of the reasons for the extremely high success of the procedure for

preliminary ruling. It is rather impossible for national Courts to face 24 different

languages and 28 jurisdictions, given that the meaning of technical words and

4

Case C-294/16 JZ [2016] ECLI:EU:C:2016:610. 5

The first known case where the Court adopted a wide-linguistic approach expressly is the judgment

issued on Case 29/69 Stauder [1969] ECR 419, ECLI:EU:C:1969:57. At the time, the EU counted

only four official languages, but all of them were analysed in order to understand the exact meaning

of the expression: bon individualisé, buono individualizzato, auf ihren Namen ausgestellten

Gitschein, op naam gestelde bon (see Bajčić and Martinović in of this book).

Introduction: The Role of the Language in EU Law 3

expressions depends on national legal traditions. At the same time, one national legal

and linguistic tradition cannot prevail over the others: such a solution would be

discriminatory and might jeopardise the uniform interpretation and application of

EU Law. Therefore, the CJEU has opted for an autonomous interpretation of EU

Law. Since the EU is an own legal system autonomous from national jurisdictions,

with special and original nature,6 its law cannot be subject to national traditions and

legal categories and cannot be interpreted according to national law. EU Law has its

meaning, which might depend both on the comparison of the various linguistic

versions and a legal comparative approach to the meaning of the words and

expressions used in such linguistic versions. Furthermore, the judgment is binding

erga omnes, i.e. not only on the requesting Court, but on all the bodies that will need

to interpret and apply the rule in the future.

National judges are well aware of the impact of the procedure for preliminary

ruling, as demonstrated by the statistics. In 2017, 533 requests for preliminary

rulings were brought, which represents about 30% of all the cases filed with the

CJEU (including the General Court).

This task is so important that national courts of last instance are under a duty to

refer a preliminary question to the CJEU (Article 267 TFEU). The rule aims at

granting the correct application of EU Law in last-instance cases, since no ordinary

remedy against it is possible, and ‘wrong’ precedents issued by a generally highly

distinguished national court might nevertheless influence the future case law.

4 The Acte Claire Principle

These duties are not without exception. According to the CILFIT judgment,7 in three

cases the duty becomes a faculty: the last instance Court has a full margin of

appreciation in order to evaluate the opportunity to refer. One of these exceptions

is a paramount example of the role of multilingualism in EU Law. There is no duty to

refer to the CJEU if the rule to be interpreted and applied is clear. But what does

clear mean in this framework, with 24 official languages and the scattered applica￾tion of EU Law? In para. 16 the CJEU stated that:

the correct application of Community law may be so obvious as to leave no scope for any

reasonable doubt as to the manner in which the question raised is to be resolved. Before it

comes to the conclusion that such is the case, the national court or tribunal must be

convinced that the matter is equally obvious to the courts of the other Member States and

to the Court of Justice.

The national court deciding the case must be convinced that the courts seating in

other Member States would reach the same interpretative conclusion. It is not

enough to refer to the legal categories of each legal system. The judge must also

6

Case 6/64 Costa c. ENEL [1964] ECR 1141, ECLI:EU:C:1964:66. 7

Case 283/81 CILFIT [1982] 3415, ECLI:EU:C:1982:335.

4 S. Marino

handle foreign linguistic versions and adopt a comparative approach. If this excep￾tion was read in a restrictive manner, finally it would have no scope of application: it

would be rather impossible to reach the high level of certainty required by the CJEU.

Nevertheless, the national court must be well aware of the fact that a purely national

focus in not enough. We only need to remind that the incorrect application of EU

Law by the last instance court might engage the civil responsibility of the State.8

Still, the judge must make an effort to give justice to the parties while applying

EU Law.

5 English as a Lingua Franca: The Perspective of a Jurist

Within EU Competition Law

A common lingua franca can be extremely useful in that respect. English is a natural

choice, because it is the language of economics, it is increasingly relevant in

international relationships and it is the most commonly used language when national

law (legislation, case law, praxis) is translated into another language.

In very technical subject matters such as Competition Law, where legal, econom￾ical and complicated factual issues are at stake, the understanding of more than one

language can help Courts in carrying out their tasks. Regulation No 1/20039 and

Directive 2014/104/UE10 long for a cooperation among different authorities.

National courts might need to work with the EU Commission, to read foreign

National Competition Authorities decisions and to take into consideration proceed￾ings pending before foreign courts. All these players must therefore have a linguistic

tool in order to cooperate, but must be aware, too, of the dangers of its use. A mere

literal translation from the national language into English might be misleading, when

cooperating with foreign authorities/judges (whose native language might not be

English).

Moreover, English is a language of a common law system. However, within the

EU, it is used among predominantly civil law systems of the Member States. This

brings to a development of the English language, when used by non-native speakers

and within the EU. The path is towards simplification, where originally technical

terms of the British—English language lose their original meaning, and new mean￾ings are associated to traditional technical words and expression.

8

Case C-224/01 Köbler [2003] ECR I-10239, ECLI:EU:C:2003:513; Case C-168/15 Tomášová

[2016] ECLI:EU:C:2016:602.

9

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on

competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2001, p. 1).

10Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on

certain rules governing actions for damages under national law for infringements of the competition

law provisions of the Member States and of the European Union (OJ L 349, 5.12.2014, p. 1).

Introduction: The Role of the Language in EU Law 5

In this framework, the knowledge of the language could not be enough. Rather,

we need to scrutinise what lies behind interpretation, translation and the develop￾ment of the language(s).

The studies collected here are part of the biennial projet Training action for legal

practitioners: Linguistic skills and translation in EU Competition Law, funded by

the European Commission and developed in two seminaries in Como, Italy, and

Warsaw, Poland, with the participation of Università degli Studi dell’Insubria,

Uniwersytet Warszawski, Ionian University, University of Rijeka-Jean Monnet

Inter-University Centre of Excellence Opatija and Universidad de Burgos. The

Editors wish to thank the Italian and the Greek Antitrust Authority and all the

experts, for their partecipations in the seminars, and for the contribution given in

this book.

The first part collects studies on current legal issues in EU Competition Law; the

second focuses on the key linguistic problems, with special regard to the use of

English as a “common” language in international and intra-EU relationships.

Silvia Marino is Professor of European Union Law at the University of Insubria, Varese and

Como, Italy, and Coordinator of the Project “Training Action for Legal Practitioners: Linguistic

Skills and Translation in EU Competition Law”.

6 S. Marino

Part I

Public and Private Enforcement of EU Law

in a Cooperative Perspective

On Economic Rationale of Competition

Policy

Flavia Cortelezzi

Abstract The aim of this contribution is to briefly explore the economic foundation

of competition policy and its main goals established in the European Union. The

economic rationale of competition policy lies in teleological and deontological

theories and its main objectives are consumer welfare, society welfare and an

efficient allocation of resources. Another type of efficiency goal regards a pluralistic

market or a free market, on which everyone can compete. We conclude discussing

the non-efficiency goals, which are nowadays at the heart of the debate.

1 Introduction

Competition Law plays a prominent role in the business environment of many

nations. Indeed, if one is a newspaper reader, the chances are good of seeing in

any given week at least one article devoted to some aspect of antitrust policy,

whether about a recently announced merger of two large companies, a case alleging

that an important software company has violated the antitrust laws by suppressing

competition, or the disclosure that a group of international firms producing an

important feed additive have conspired to fix prices. A significant statement why

competition and, thus, competition policy is important for everyone was provided by

the European Competition Commissioner Joaquín Almunia in a speech in February

20111

:

Ladies and Gentlemen: Competition is an instrument, not an end in itself. But it is indeed a

vital instrument in very many respects. Without fair, robust, and effective competition policy

and enforcement, I don’t see how we Europeans can overcome the crisis rapidly and shape

up to compete with the other, dynamic players that are increasingly present on the world

F. Cortelezzi (*)

University of Insubria, Como, Italy

e-mail: [email protected]

1

European Commission (2011) The European Commission Press Release Database. http://europa.

eu/rapid/pressReleasesAction.do?reference¼SPEECH/11/96&format¼HTML&aged¼0&

language¼EN&guiLanguage¼en. Accessed 15 Apr 2018.

© Springer Nature Switzerland AG 2018

S. Marino et al. (eds.), Language and Law,

https://doi.org/10.1007/978-3-319-90905-9_2

9

scene. Of course, competition is not the only tool we should use to pursue this goal. But we

need a vibrant and competitive environment in the single market if we are serious about

leading in the information age. We need competition to be equal partners with the US, China,

and the other leading global players; we need competition to grow; we need competition to

preserve our social model for the benefit of our citizens and of the future generations.

Considering our demographic trends and the imperative task of building sustainable and

green economic and social models, Europe needs all its resources and resourcefulness. The

EU competition system is one of the best, if not the best in the world. My commitment is to

use it to the full extent of the law, because I am convinced that this is what I must do within

my area of responsibility to contribute to a better future for Europe. Thank you.

Thus, economics lies at the heart of Competition, or Antitrust, Law. This section

is intended to serve as an introduction to the economics behind antitrust policies.

While in the early days the application of antitrust rules was almost entirely left to

experts with only a legal background, it is now widely accepted that the proper

interpretation of these rules requires an understanding of how markets work and of

how firms can alter their efficient functioning. This knowledge is the realm of

economic science.2 As the awareness of the central role of economics in antitrust

has progressed, so has the research. An industrial economist would probably say that

the growth in the demand for economic knowledge coming from administrative

bodies, courts, companies, and lawyers (in short, the antitrust community) has led to

a reorganization of the industry, with a sharp increase in the supply of new theoretical

models and more reliable empirical methods. This reorganization has taken place

mostly over the last 30 years or so, and has significantly changed the landscape.

Firms might restrict competition in a way which is not detrimental.3 Let us

consider the case of an industry with no barriers to entry. One might think that

market forces, and in particular the threat of new entrants, will eliminate monopolies

or dominant positions and reduce prices. Yet, firms might resort to anti-competitive

actions that create a dominant (or monopolistic) position and, more generally, to

actions that increase their profits, but reduce welfare: collusive agreements (e.g. the

lysine cartel was formed by ADM and several large Asian rivals), anti-competitive

mergers (e.g. Coke with Dr Pepper) and exclusionary behaviour (e.g. US vs

Microsoft) are cases in point. Collusive agreements can take different forms: firms

might agree on sales prices, allocate quotas among themselves, divide markets so

that some firms decide not to be present in certain markets in exchange for being the

sole seller in others, or coordinate their behaviour along some other dimensions.

Collusive practice allows firms to exert market power they would otherwise have,

and artificially restricts competition to increase prices, thereby reducing welfare.

Mergers—in particular mergers between competitors—might allow both the merged

firm to unilaterally exercise market power and raise prices, and favours collusion in

the industry. In this last case, the merging firm would not be able to unilaterally raise

2

The role of economists in European Competition Law enforcement (the so-called more economic

approach) has been described by the former chief economist at DG-Comp, Lars-Hendrik Röller. He

makes it clear that the “question for effective enforcement is not one of “more” or “less” economics,

but rather what kind of economics and especially how economic analysis is used [...].”

(2005), p. 11. 3

For a more detailed discussion, see Motta (2004).

10 F. Cortelezzi