Language and Law

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.

This chapter provides a general survey of the antitrust public enforcement in Italy during recent years. It emerges that efforts have been put to ascertain abuses that have been very rarely scrutinised in the past, such as abuses of dominant position through excessive prices. Moreover strict antitrust enforcement was necessary to avoid the possibility that cartels would undermine the positive implications of the more centralised approach in public purchasing which Italy has adopted. Alongside these lines of antitrust intervention, the Italian Competition Authority has often used its advocacy powers to ensure the role of competition in promoting dynamic markets and economic growth especially in the fields of the new digital and sharing economy.

The Court of Justice of the European Union case law on private enforcement of EU Competition Law will be examined in order to explain the developments on the topic until the enactment of specific legislative instruments such as Directive 2014/104/EU. In this context, some leading cases are analysed, with particular regard to those that have led to further elaboration of jurisprudence or doctrine, as the decisive judgments Courage Ltd v. Crehan, Masterfoods Ltd. v. HB Ice Cream, Ltd. and Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA, consolidating the previous case law. In all the case law compliance with the characteristics of the European legal order shall be specified too. The relevance of the direct effect will be highlighted, since it might be problematic in the case of the Directive. Most of this case law has been the result of questions referred for a preliminary ruling directly to the Court of Justice from the courts of the Member States. These courts are responsible for complying with the EU measures to settle disputes at a national level between natural or legal persons in mainly civil or commercial matters.

This chapter addresses the study of the direct application of Competition Law at European level, as well as the problems that have arisen in practice. The importance of the principle of direct effect of Community legislation, the cornerstone on which European Competition Law is based, is of particular interest. We must not forget that the development of the protective rules of free Competition is at the origin of the European Union, since the Treaty of Rome of 1957. After a brief introduction on the Regulation and the background of private enforcement of Competition Law, the legislative context will be examined. This context will show how Community Law recognises the direct applicability of Competition rules to relations between individuals. These legal texts are mainly 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 Treaty on the Functioning of the European Union and Directive 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.

By the recent enactment and transposition in the EU Member States of Directive 2014/104/EU on antitrust damages actions, the EU has accomplished to couple the existing choice-of-jurisdiction and choice-of-law discipline on follow-on actions with substantive rules. The article discusses the efficiency of the private international law discipline of such actions in light of the overall goal to enhance free and undistorted competition through private enforcement of EU Competition Law rules.

Our discussion of the topic of the protection of individuals from big companies’ and multinationals’ malpractice, according both to the European and the Greek Competition Law, moves along two separate axes: one having to do with a presentation of the current situation prevailing in the field of the Greek Competition Law, i.e. the situation prior to the implementation of the EU Directive 2014/104 and the other related to a forecast of the possible consequences of this implementation. For this second part, we make the choice to refer ourselves to the US Alien Tort Claims Act (ATCA) and the possibility of the formation of a framework of international law rules protecting human rights from the breaches and trespasses of big companies. We conclude that when Competition Law rules fulfil their inherent goal, that is welfare of the society as a whole, they have the potential to operate as a tool of enhancing civil society vis-à-vis big companies and multinationals, thus moving in parallel with international law’s endeavour to create an area of protection of human rights from their malpractice.

The Directive on certain rules governing actions for damages under national law for infringements of Competition Law provisions of the Member States is the first Directive enacted in the field of Competition Law private enforcement. The Directive was passed on 26 November 2014, while the Member States were required to enforce laws, regulations and administrative provisions necessary to comply with the Directive by 27 December 2016. Although private enforcement is distinguished from public enforcement, they interact in many ways. The perception is however that private enforcement of Competition Law is underdeveloped, uncertain and ineffective. The purpose of this chapter is to provide insight into the Croatian rules on the damages claims, especially in light of the new Croatian Act on Actions for Damages for Infringements of Competition Law. The Act contains both substantive and procedural rules governing actions for damages for infringements of the Competition Law provisions. The chapter analyses the new rules on the damages actions and outlines the main provisions of the Act in juxtaposition to the Directive. Special emphasis is put on the substantive and procedural novelties that diverge from the present regulation.

The admissibility of damages actions has not come as a surprise in Italy, when the Court of Justice of the European Union first upheld it in the Courage case. Nevertheless, Directive 2014/104/EU is to be welcome in order to grant more legal certainty in national proceedings. The Italian legislator has enacted the Directive by decreto legislativo 3/2017 (legislative decree). This chapter aims at analysing the new rules on private enforcement under the light of the Italian transposition and relevant praxis. It finally highlights the general line of continuity between the previous case law and the current system, and, at the same time, points out some meaningful breaks with the traditional solutions of the Italian legal system.

“United in diversity”—the motto of the European Union (EU)—points out the paradoxes both drafters and interpreters of EU law cope with. On the one hand, diversity (including diversity of cultures and languages) is respected and protected by EU law. On the other hand, EU law is required to be applied uniformly in all Member States, thus creating the union of languages and cultures. The chapter investigates how this paradoxical combination of diversity and unity is obtained by means of language use during legislative drafting and judicial interpretation processes. In particular, the analysis focuses on whether linguistic equality can be attained when EU law is drafted and interpreted. If all EU official languages are in use throughout the legislative process, and none of them has a dominant position, especially, none of them influences radically the wording of other language versions, then all language versions of an EU legal act should equally shape the meaning of this act. Consequently, the unity reflected in the uniform interpretation of EU law (the same meaning of all language versions of an EU legal act in all Member States) can be achieved through linguistic diversity manifested in the multilingual nature of EU legislation.

The present chapter seeks to explore EU Competition Law concepts and terms, such as exploitative abuses, concerted practice, vertical agreements, leniency, and undertaking, in English, Greek, Italian and Spanish. It draws on the analysis of a multilingual parallel corpus of EU Competition legislation and aims to investigate the strategies used for the formation of terms and their translation under the light of EU Law autonomy and uniform interpretation and the EU’s policy of multilingualism. In so doing, it also aspires to establish whether the sought-after unified deterritorialised and hybrid legal culture in the EU can actually exist.

While it is true that legal language strives for precision, legal concepts are often vague. This seeming paradox can be observed in light of the fact that legal concepts need to be applied to different real-life situations in order to account for the changing social circumstances. By focusing on the important role of terminology in general, and concepts in particular, for the mechanism of the law, this chapter poses the following question: How do courts cope with vague concepts of EU Law and inadequate terms in translations of EU Law? Emphasis is placed on EU Competition Law concepts from the dual perspective of law and language. Applying terminology as a linguistic discipline which studies terms, concepts and the conceptual structure, can further understanding of EU Competition Law concepts. On the other hand, examining how the Court of Justice of the EU grapples with the meaning of vague EU Law concepts and how it resolves divergences between language versions in its case law, provides valuable assistance for legal practitioners, and translators. With this in mind it can be claimed that to overcome vagueness and linguistic discrepancies, lawyers and linguists need to engage in a continuous exercise of mutual learning.

This chapter investigates binomial expressions in EU legal language from a bilingual corpus-based perspective, where one of the languages involved in the analysis is a language of lesser diffusion. By investigating binomial expressions in two parallel corpora of EU Competition Law (English and Croatian), the chapter focuses on the semantic relationship between the constituents so as to account for the deletions in the language which does not dispose of the same binomial structures. Since EU Law in general and EU legal translation in particular is characterised by hybridity, an attempt is made to detect non-typical binomials. The chapter also investigates whether these binomials, although some of them invented for the purpose of conveying the meaning of the concepts of EU Law, can still be considered more idiomatic in one language than in the other.

The objective of this chapter is, first, to identify key terms in EU Competition Law in English and, secondly, to identify and examine their collocational environment via the corpus methodology. The first part of the chapter presents a theoretical background on EU English as a supranational variety of English due to the increased mediation of content through translators and non-native English-speaking authors. The chapter next discusses the role of collocations, focusing on collocations of legal terms and collocations in EU English. Section 4 describes the EU Competition Corpus (1.5 million words), comprised of EU legislation, case law and “praxis” documents on Competition Law. The corpus was used to extract term-node candidates (103 terms). Their collocational environment was analysed through words sketches and concordances in Sketch Engine and WordSmith. The analysis has focused on the following aspects of collocations: semantic prosodies, collocational ranges (combinatory potential), derivational productivity, international prefixes, Latinisms, premodification by –ing and –ed participles, adjectives with negative connotations, deverbal and deadjectival nouns and an atypical grammatical behaviour of certain patterns. Last but not least, the chapter draws attention to a high variation of terminology and phraseology at various levels, which contributes to the hybridity of EU English.

This chapter presents the glossary of collocations of key terms identified in the EU English Competition Corpus for the purposes of the analysis presented in previous chapter. The aim of compiling a glossary of collocations and other phrasemes was to assist legal practitioners and other professionals who are non-native speakers of English in the reception and production of legal texts on Competition Law. Each entry consists of a key term-node in the nominal form, followed by its pronunciation, frequency of use and derivatives. The core of an entry comprises three types of collocational patterns of terms: adjectival patterns, nominal/prepositional patterns and verbal patterns.

The chapter is aimed to raise legal practitioners’ and translators’ awareness of natural language patterns in judgments relating to Competition Law so that they are better equipped to both understand judgments with ease and to stay close to the established conventions when producing their own texts. Complex prepositions contribute largely to the phraseological profile of legal genres, thus requiring a careful examination. In particular, the chapter discusses the distribution and discourse functions of simple, marginal, compound, and, most importantly, complex prepositions in judgments of the Court of Justice of the European Union (CJEU) relating to Competition Law. In addition, the chapter draws comparisons with the language of judgments relating to all types of subject matter under the authority of the CJEU, the language of UK judicial decisions, and general English. The results point to the marked overrepresentation of certain complex prepositions (e.g. in accordance with, according to, relating to, in order to) in the genre of EU judgments as compared to UK judicial decisions (and vice versa) and general English. Therefore, it may be claimed that the high overall distribution of complex prepositions is a distinctive feature of the genre of CJEU judgments.