The Strategic Value of Ambiguity in Divergent Terms Used Interchangeably in the CJEU's Preliminary Rulings

Abstract

This paper examines instances of terms denoting autonomous concepts of EU law used interchangeably in the preliminary rulings of the Court of Justice of the European Union (CJEU). In particular, the focus falls on the interchangeability established between the terms “right” ,“principle” and “entitlement” in Dominguez (Example 1) as well as between the terms “scope/field of application”, “implementation” and “applicability” in Åkerberg Fransson (Example 2). The methodological approach at the centre of this study aims to identify linguistic divergences in the official EU translations of these terms, rendering the terms divergent. The purpose of this exercise would be to challenge the assumption that the practice of using terms interchangeably by the Court necessarily implies the existence of synonymy between them. It might be that the linguistic divergences reveal a deviation in meaning that is sufficient for polysemy (as a form of ambiguity) to be established instead. Such a hypothesis relies on the emergence of “inter-lingual ambiguity” (Cao, 2007: 78) as a matter of the totality between the EU translations of the terms. If that be the case, it might be worth examining the strategic implications behind these instances of ambiguity production, in the hopes of gaining more profound insight into the ECJ’s decision-making process and overall approach to system-building through the implementation of the authority of EU law (Leczykiewicz, 2008). This is done by matching the selected examples to concrete judicial tactics for increasing the Court’s reputation (Dothan, 2014).

Keywords: Multilingual Analysis, Linguistic Divergences, Divergent Terms Used Interchangeably, Ambiguity Production, Strategic Adjudication By The CJEU, The Authority Of EU Law, Preliminary Ruling Procedure