Is That a Fish in Your Ear?

They can’t call either version a translation since all versions are originals; because the court’s working language is French, moreover, there are almost always three texts or formulations involved. On rare occasions, the taboo term translation mistake has been used—for example, when the German version of a regulation about the import of sour cherries used the term Süßkirschen, “sweet cherries,” instead.[142] Such an easy judgment is untypical of the court’s work. More frequently the court has to decide what the law was intended to achieve, over and above any one of its linguistic expressions. In monolingual national cultures of law, the best evidence of the legislator’s intention lies in the words of the law, and much traditional legal argument is about the meanings of words. In European law, you have to go one further than that. Questions of legal interpretation in the appeals court of the EU are also always questions about language in twenty-four different forms.

Let’s suppose in some practical circumstance not foreseen by the drafters of an EU directive there is a substantive difference in the force of the French and the German texts, and that this has given rise to a complaint by France that Germany is not applying EU law correctly. The ECJ has to decide whether France is right. But since there is no master text (in Latin, for instance) to provide a higher authority or a standard of judgment, the court has basically only two ways of working out what it thinks. Using the skills of its divisions of lawyer-linguists, it can list all the language versions that support the French interpretation and all those whose sense in the context of the case leans more toward the German interpretation—and grant victory to the larger group, whichever it is. But the ECJ does not have to proceed by this kind of “majority verdict.” It may identify one language version that it considers to have expressed the legislative intention of the directive more clearly, or more precisely, than any of the others.

Both these procedures hark back to the tools developed by the Church Fathers for establishing the “word of God” through comparisons of the different translations of the Bible (principally, the Greek and Latin ones). What has been called the “Augustinian approach” to the interpretation of European law effectively seeks to establish a meaning that transcends any one of its language versions but which animates them all. It runs into some fairly obvious problems.

In Peterson v. Weddel & Co., Ltd., the issue was a criminal prosecution within the U.K. for violation of a regulation setting limits on the operations of trucks. An EU regulation exists that allows member states to make exemptions from the general rule for the “transport of animal carcasses or waste not intended for human consumption.” The firm that had been fined in the U.K. had been transporting animal carcasses to butchers’ shops, which clearly intended to sell them for human consumption. But the trucking firm claimed it was exempted from the rule by the EU clause just quoted and was appealing against an English court’s refusal to allow it to get away with its behavior. The trucking firm’s lawyers claimed that waste not intended for human consumption and animal carcasses in general (whether intended for human consumption or not) were exempted, whereas the English courts had considered that the exemption applied only to waste and animal carcasses not intended for human consumption. It may sound arcane, but the issue was clear enough: Was the trucking firm cheating on the rules or was it not?

The issue at the heart of this case is a familiar problem in the language of law and in language in general: When you have a list of nouns followed by a qualifying or restricting phrase, where do you put the punctuation? Does the restricting phrase restrict every member of the list, or only the last one? Does the expression “children and women with babes in arms” include children with babes in arms or does it not?

In daily usage, we leave disambiguation of this kind to common sense and context. In law, it’s fertile ground for persnickety legalese. When this issue came before the ECJ, however, the lawyers, the linguists, and especially the lawyer-linguists began by reviewing and comparing all twenty-four language versions of the exemption. They found one among them—the Dutch text—where the restriction to goods “not intended for human consumption” precedes both “animal carcasses” and “waste.” It does so for almost exclusively grammatical reasons. The court treated it as a godsend, however, not as a grammatical variant of the same ambiguous text. It chose to regard the Dutch order of words as a clearer and more precise expression than all the others of the true intention of the law—and turned down the appeal. The trucking firm had to pay the fine.[143]