1.Introduction

Within the current European and global legal setting, normative multilingualism is experiencing a phase of great expansion. Favoured also by growing phenomena of supranational aggregations (Lindseth 2017Lindseth, Peter 2017 “Supranational Organizations.” In The Oxford Handbook of International Organizations, edited by Jacob K. Cogan, Ian Hurd & Ian Johnstone, 152–170. Oxford: Oxford University Press. ), from a comparative law perspective, multilingual law contributes to the emergence of new legal languages, characterized by new concepts and uniform taxonomies, within languages originally conceived to express national and local laws.

This process is particularly visible within the European Union (EU), an iconic legal system where multilingualism and national law harmonization contribute to shaping a new taxonomy of European creation, formulated in all official languages and becoming more and more the object of comparative law studies. The point of departure for almost all comparative law studies is the origin of this language (Jacometti 2012Jacometti, Valentina 2012 “Literature Review on European Multilingualism.” European Review of Private Law 20 (5/6): 1383–1387. ; more recently Ioriatti 2013Ioriatti, Elena 2013 Interpretazione comparante e multilinguismo europeo. Padova: Cedam.; Baaij 2018Baaij, C. J. W. 2018 Legal Integration and Language Diversity. Rethinking Translation in EU Lawmaking. New York: Oxford University Press.): when considering its specific characteristics, the language of EU law is, like law itself, a cultural and social phenomenon that must be observed in its time and space.

Indeed, a relevant feature of EU legal language, which is important to understand in its own nature, is that multilingualism and harmonization both work as catalysts of this linguistic phenomenon. This is clearly visible as legal translation in a multilingual context is functional to the intent of multilingual legislation itself (Ioriatti 2013Ioriatti, Elena 2013 Interpretazione comparante e multilinguismo europeo. Padova: Cedam.), that is to say, to the harmonization of national law (Pozzo 2012Pozzo, Barbara 2012 “Multilingualism and the Harmonization of European Private Law: Problems and Perspectives. European Review of Private Law 5/6:1185–1198. ). Such synergy between multilingualism and harmonization is operatively settled within the EU translation strategy, which does not rely on comparative law to find functional equivalents of the single legal concepts in all official national legal languages: this operation would not only be technically impracticable, but would not respond to the institutional commitment of harmonization (Šarčević 1997Šarčević, Susan 1997 New Approach to Legal Translation. The Hague: Kluwer Law International.).

Differently, legal translation at the EU level is a highly complex activity (Biel 2019Biel, Łucja 2019 “Theoretical and methodological challenges in researching EU legal translation.” In Legal Translation. Current Issues and Challenges in Research, Methods and Applications, edited by Ingrid Simonnæs and Marita Kristiansen, 25–39. Berlin: Frank & Timme.), daily managed also through the creation of neologisms and calques. When shaping or creating concepts so that all languages formally share a common European meaning, EU translators and lawyer-linguists are by definition not “translating”, but de facto formulating “autonomous concepts”,11.The autonomy of EU concepts was ruled almost 40 years ago by the Court of Justice of the European Union in the well-known Cilfit case (Case 283/81 – Srl Cilfit and Lanificio di Gavardo (SpA) v Ministry of Health), representing a milestone for the development of the EU legal language, freeing EU legal concepts from the national environment. detached from any national meaning and not rooted in a pre-existing legal culture.

Thus, the European Union – as well as all legal systems relying on written law – do filter norms through language, which also contributes to the expression and conceptualization of the norms themselves. From a research perspective, the knowledge of this process is just as valuable. The comparatists, but also jurists in general (Mahieu 2019Mahieu, Michel 2019 “L’interprétation du droit communautaire.” In L’interprétation en droit. Approche pluridisciplinaire, edited by Michel van de Kerchove, 349–383. Brussels: Presses de l’Université Saint-Louis.) are gradually realizing that, when interpreting EU law, the study of its legal language is definitely important. In particular, to the extent that some relevant areas of European legislation, such as consumer law, are developing towards maximum harmonization, the level of abstractness of EU concepts is going to increase. However, from a legal view point no one can yet claim the existence of a general system of concepts to interpret the EU legislation, as it is, for instance, when it comes to the civil codes or the constitutions in the national legal systems. Thus, EU core and abstract concepts like contract or possession can only be adequately defined in relation to their meaning within a specific directive or regulation.

In comparative law studies, the impact of EU legal language in a wider environment is also worthy of research. The increasing globalization inevitably calls for a specific set of terms (Tiersma 2016Tiersma, Peter 2016 “A history of the language of the law.” In The Oxford Handbook of Language and Law, edited by Peter Tiersma and Lawrence D. Solan, 13–26. Oxford: Oxford University Press., 25) and the EU terminology is central and visible within the globalized legal order (Engberg 2016aEngberg, Jan 2016a “Word meaning and the problems of a globalized legal order.” In The Oxford Handbook of Language and Law, edited by Peter Tiersma and Lawrence D. Solan, 175–186. Oxford: Oxford University Press., 175), even if still under development. With the passing of time, EU concepts acquire an indisputable global position, as a paradigm for other emerging legal languages. This is particularly true for economic rights, an area of EU terminology which is of crucial importance to the EU’s role as one of the interlocutors in the global marketplace (Ioriatti 2018Ioriatti, Elena 2018 “EU legal language and economic rights interpretation in the Member States.” In EU Citizens’ Economic Rights in Action. Rethinking Legal and Factual Barriers in the Internal Market, edited by Sybe De Vries, Elena Ioriatti, Paolo Guarda & Elisabetta Pulice, 188–204. Cheltenham: Edward Elgar. ). On the other hand, the EU is also importing concepts from the outside (Biel and Sosoni 2019Biel, Łucja and Vilelmini Sosoni 2019 “EU legal culture and translation in the era of globalisation: the hybridisation of EU terminology on the example of competition law.” In Legal Linguistics beyond the Borders: Language and Law in a World of Media, Globalisation and Social Conflicts, edited by Friedemann Vogel, 208–229. Berlin: Duncker and Humblot.). Thus, attention to the circulation of legal models at the supranational level through this new legal-linguistic phenomenon does enrich the studies on globalisation and the law (Gerber 2001Gerber, David J. 2001 “Globalization and Legal Knowledge: Implications for Comparative Law.” Tulane Law Review 75:949–975.).

In the same way, studies into transplantations of EU models (legal transplants in comparative law terminology) in the Member States coincide with considerations of how the legal language facilitates or impedes this process (Pozzo 2012Pozzo, Barbara 2012 “Multilingualism and the Harmonization of European Private Law: Problems and Perspectives. European Review of Private Law 5/6:1185–1198. ). Indeed, the circulation of European legal concepts also occurs vertically, from the supranational to the national context. In this case, we can observe a slow, subtle, but eventually final process, through which European concepts adapt to the Member States’ legal culture and therefore to their legal language. Take parental responsibility for instance. An Italian jurist of the past century was certainly not aware of the meaning of this European concept (literally translated in Italian as responsabilità genitoriale”); it has now become part of national law, just like the European term that refers to it, and of Italian legal language.

Studies into the dialectical relationship between law and language in comparative law have also received attention, in particular as regards the role that general languages have in making legal models circulate (Moréteau 1999Moréteau, Olivier 1999 “L’anglais pourrait-il devenir la langue juridique commune en Europe?” In Les multiples langues du droit européen uniforme, edited by Rodolfo Sacco and Luca Castellani, 111–125. Turin: Harmattan.). Law has been the product of various civilisations and phases of history, but it is out of doubt that the evolution of legal terms also depends on the progress of the general language that is its means of expression.

The circulation of EU legal concepts worldwide has been facilitated by the role that English has as a lingua franca. Legal English is expanding within the current European and global settings, also due to the strong “appeal” that English has globally as “the” language of communication: the presence of supranational organizations, an intensification of international negotiations, the impact of globalization on the legal world, migration – all leading to new legal languages linguistically evolving from English (see for examples Gnutzmann and Intemann 2005Gnutzmann, Claus and Frauke Intemann eds. 2005 The Globalization of English and the English Language Classroom. Tübingen: Gunter Narr Verlag.).

With reference to the EU, the distance between European legal English and the “traditional” language of Common law is the result of supranational legal languages evolving in an entirely independent way from the terminology formulated at Westminster since the 11th century (Mellinkoff 2004Mellinkoff, David 2004 The Language of the Law. Benton: Resource Publications.). Legal English of European law, just like all EU terminology in other official languages, is formulated through autonomous concepts which are different from those of common law even if they have similar characteristics.

Nevertheless, as if it were a sort of compensation for such deminutio capitis, the legal English of England is often the paradigm of new European legal concepts, formulated firstly in EU English and then in other languages (Bajčić 2018Bajčić, Martina 2018 “The Role of EU Legal English in Shaping EU Legal Culture.” International Journal of Language and Law 7:8–24.). EU terms are often formed in the official languages through neologisms calqued from English. A well-known example is the concept of residenza abituale (as a calque of habitual residence), which has a different meaning from, for instance, the concept of residenza derived from the Italian Civil Code (Ioriatti 2009Ioriatti, Elena 2009 “Linguistic Precedent and Nomadic Meanings in EC Private Law.” Revista General de Derecho Público Comparado 6. https://​www​.iustel​.com​/v2​/revistas​/detalle​_revista​.asp​?id​_noticia​=408558​&d​=1).

If legal translation still remains fundamental in comparative law studies, the European legal language is an important example of the supranational legal phenomenon in terms of relationship between language and law. It is highly likely that multilingual law will become the core of contemporary comparative law studies on legal translation, and comparatists’ growing interest in legal translation is also due to the progress made in law and language studies (Grosswald Curran 2019Grosswald Curran, Vivian 2019 “Comparative Law and Language.” In The Oxford Handbook of Comparative Law, edited by Michael Reimann and Reinhard Zimmermann, 675–707. Oxford: Oxford University Press.; Ost 2014Ost, François 2014 “Law as Translation.” In The Method and the Culture of Comparative Law. Essay in Honour of Mark Van Hoecke, edited by Maurice Adams and Dirk Heirbaut, 69–86. Oxford: Hart Publishing.; Baaij 2018Baaij, C. J. W. 2018 Legal Integration and Language Diversity. Rethinking Translation in EU Lawmaking. New York: Oxford University Press.).

2.EU concepts in the Member States

Among the various profiles of multilingual law, a research field of growing importance is the nature of EU concepts, with particular focus on the impact that the wording of EU norms has in the Member States, in terms of legal meanings and effects. It is an important topic in the field of law and language, which began to be researched in the early 2000s by comparatists (Castellani and Sacco 1999Castellani, Luca and Rodolfo Sacco eds. 1999 Les multiples langues du droit européen uniforme. Turin: Harmattan.), other scholars (Schübel-Pfister 2004Schübel-Pfister, Isabel 2004 Sprache und Gemeinschaftsrecht – Die Auslegung der Mehrsprachig verbindlichen Rechtstexte durch der Europäischen Gerichtshof. Berlin: Duncker & Humblot. ; Derlén 2007Derlén, Mattias 2007 A Castle in the Air: The Complexity of the Multilingual Interpretation of European Community Law. Ph.D. dissertation Umeå: Umeå Studies in Law., 2009Derlén, Mattias 2009 Multilingual Interpretation of European Community Law. The Hague: Kluwer Law International.; Ioriatti 2013Ioriatti, Elena 2013 Interpretazione comparante e multilinguismo europeo. Padova: Cedam.; van der Jeught 2015van der Jeught, Stefaan 2015 EU Language and Law. Groningen: Europa Law Publishing.), as well as EU experts (Robertson 2016Robertson, Colin D. 2016 Multilingual Law: A Framework for Analysis and Understanding. Abingdon: Routledge. ).

The intense debate on the problems surrounding the meaning of EU terms is not unsurprising. Overall, the field of EU language studies may be favoured by the growing interest in the relationship between law and language in comparative law, together with the need for interdisciplinary and empirical researches (see Ballin and Senden 2005Ballin, Hirsch Ernst M. H. and Linda A. J. Senden 2005 Co-authorship in the Development of European Law-making. The Quality of European Legislation and its Implementation and Application in the National Legal Order. The Hague: T.M.C. Asser Press. for an empirical research project). Furthermore, as an important EU project – bEUcitizen22.The bEUcitizen project, a consortium led by Utrecht University (coordinator Sybe A. de Vries) and financed by the European Commission (Horizon 2020), has identified several categories of potential hindrances to the exercise of EU citizen rights: contradictions between different rights, ‘multilevel’ rights, and differences in the priority given by Member States to these rights; differences between political, administrative, and legal institutions; financial restraints; lack of sufficient solidarity; administrative and bureaucratic hurdles. Linguistic barriers are analyzed too, under the scientific coordination of the author of this chapter, who was also a member of the Executive board and the national coordinator for Italy. For more information see https://​www​.giurisprudenza​.unitn​.it​/74​/beucitizen. – has shown, sociological and constitutional profiles are also involved: EU citizenship is presented as a clear bundle of rights, immediately visible and enjoyable by every European citizen. In concrete terms, it is doubtful whether we can observe a real, common enjoyment of EU citizens’ rights in the Member States.

Yet, even in comparative perspective, the problem is always related to the culture-specific nature of all legal concepts, the meaning of which is strictly dependent on their system of reference, composed by interrelated categories, concepts, norms and culture (Mattila 2006Mattila, Heikki E. 2006 Comparative Legal Linguistics. Aldershot: Ashgate.). In contrast to national systems of concepts, EU legal concepts are not the result of a layering of meanings developed through time, by legal traditions and values of reference (Gambaro 2007Gambaro, Antonio 2007 “Interpretation of Multilingual Legislative Texts.” Electronic Journal of Comparative Law 11(3):1–20.). The “transplant” of the wording of an EU norm in the national setting does not mean that the specific meaning – or the common meaning underlying national law harmonization – is transferred too, as norms and concepts are subject to natural adaptations in the specific national context. All in all, measuring if multilingualism obscures some of the components of EU citizenship rights is a difficult achievement too. For this reason, the importance of maintaining a constant dialogue among the different actors involved in the legislative and judicial process is underlined in the debate (Engberg 2016bEngberg, Jan 2016b “Autonomous EU Concepts – Fact or Fiction?” In Language and Culture in EU Law: Multidisciplinary Perspectives, edited by Susan Šarčević, 169–182. Abingdon: Routledge., Ferreri 2016Ferreri, Silvia 2016 “Loyal to Different Exclusive Masters: Language Consistency at the National and Supranational Level.” Statute Law Review 37(2):172–181. ).

As a contribution to the debate, the thesis advanced in this chapter is that despite all difficulties and hindrances, common contexts of meanings are already flourishing in the European legal setting as a result of the interrelation between EU legislation and the normative forces grounding the practices of law in Europe.

At the national level, studying the interpretation of EU court decisions as well as legislation transposing EU law from legal systems, proves that a process of cultural adaptation to EU law is already visible. Courts and lawmakers seem to have developed the right awareness and capacity to qualify EU concepts as autonomous, regardless of the distance from their own national legal culture. At the same time, they also interpret them in order to contribute to a consolidate and common meaning to EU law. This effective autonomous and European interpretation of EU norms is probably part of a broader tendency at a global and international level, to move towards a more universal interpretative approach, guided by the hermeneutical criteria of supranational courts, in particular the Court of Justice of the European Union (Rösler 2012Rösler, Hannes 2012 “Interpretation of EU law.” In The Max Planck Encyclopedia of European Private Law, edited by Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann and Andreas Stier, 979–982. Oxford: Oxford University Press.; Jemielniak and Mikłaszewicz 2010Jemielniak, Joanna and Przemysław Mikłaszewicz 2010 “Introduction: Capturing the Change: Universalising Tendencies in Legal Interpretation.” In Interpretation of Law in a Global World: From Particularism to a Universal Approach, edited by Joanna Jemielniak and Przemysław Miklaszewicz, 1–30. Berlin: Springer. ).

Following this research trend necessitates the use of methodological tools which visualize this already ongoing process. In particular, semiotics and comparative law enable scholars to adequately uncover the complex interconnections of the legal language formulated by the EU drafters and interpreted by the national courts. These contexts of meanings become visible only when approached from a specific comparative point of view as legal formants and from a semiotic point of view as signs.

These two fields are closely intertwined if observed in their structuralist dimension; both are equipped with methods aiming to categorize the object of analysis – the law as a formant, the law as a sign – into recognizable instruments, so as to uncover and collect findings. Structuralism is a common methodological ground of these approaches, separated by the object of analysis. Comparative law is part of legal studies and therefore its methodological point of reference – its object – is law (Kischel 2019Kischel, Uwe 2019 Comparative Law. Oxford: Oxford University Press., 160). As for the semiotic analysis, which is the study of signs (Burks 1958Burks, Arthur W. 1958 The Collected Papers of Charles Sanders Peirce. Vol. 7. Cambridge, MA: Harvard University Press.), law assumes its relevance for the fact that it is a phenomenon producing “signs”.

EU law is framed and structured by multilingualism and hence by linguistic and juridical elements combined. It is this “hybrid” nature of EU legislation, being juridical and linguistic at the same time, that calls for interdisciplinary methodologies in research which go beyond an analysis of its strictly juridical substance. Thus, it is necessary to visualize the already existing contexts of meanings, produced by the interrelations between the EU and the national level, from an interdisciplinary perspective.

With this aim in mind, this chapter is organized as follows. After a brief description of the traditional method of comparative law – functionalism – the following section describes the theory of the legal formants, an alternative comparative law method derived from structuralism. Section 4 is dedicated to structuralism in semiotics. The interdisciplinary method which combines comparative law and semiotics and is based on legal formants and meta-concepts visualizes contexts of meanings that are made common by the encounter of EU legislation and the national forces practicing EU law at the national level. This phenomenon is discussed in a case study (Section 5) and commented in the Conclusions.

3.Comparative law and legal formants

Although there is no longer doubt that any comparative law is a method and a science (see the origin of the debate in Constantinesco 1972Constantinesco, Leontin-Jean 1972 Introduction au Droit Comparé. Traité de droit comparé. Vol. 1. Paris: Librairie Générale de Droit et de Jurisprudence. and Sacco 1992Sacco, Rodolfo 1992 Introduzione al diritto comparato. 5th Ed. Turin: UTET.), the methods of comparative law are still open to a very lively debate (Adams and Heirbaut 2014Adams, Maurice and Dirk Heirbaut eds. 2014 The Method and Culture of Comparative Law. Essays in Honour of Mark Van Hoecke. Oxford: Hart Publishing.; Siems 2014Siems, Mathias 2014 Comparative Law. Cambridge: Cambridge University Press.; Adams, Husa, and Oderkerk 2017Adams, Maurice, Jaakko Husa, and Marieke Oderkerk eds. 2017 Comparative Law Methodology. Cheltenham: Edward Eldgar. ; Vogenauer 2019Vogenauer, Stefan 2019 “Sources of Law and Legal Method in Comparative Law.” In The Oxford Handbook of Comparative Law, 2nd ed., edited by Mathias Reimann and Reinhard Zimmermann, 878–901. Oxford: Oxford University Press.).

Ever since the 1990s, in his Introduzione al diritto comparato (Introduction to comparative law, Sacco 1992Sacco, Rodolfo 1992 Introduzione al diritto comparato. 5th Ed. Turin: UTET.) Rodolfo Sacco, one of the founders of comparative law in Italy, observed that given the variety of methodological options scholars already had at their disposal, qualifying comparative law as a method itself and not as a science was simply reductive. Even back then, no one could have foreseen the plurality of methods which are applied within the comparative law community (van Hoecke 2015Van Hoecke, Mark 2015 “Methodology of Comparative Legal Research.” Law and Method 2015:1–35. ) and nowadays there are an impressive number of authors who propose or describe different ways in which comparative law research should be done (see for an overview Kischel 2019Kischel, Uwe 2019 Comparative Law. Oxford: Oxford University Press., 102–152).

Among these methods, one of the best-known is functionalism, that is considered as the point of departure for almost every contemporary comparative study on methodology. The basic features of functionalism have been described by several authors (Glendon, Gordon, and Osakwe 1994Glendon, Mary A., Michael W. Gordon, and Christopher Osakwe eds. 1994 Comparative Legal Traditions: Text, Materials, and Cases on the Civil and Common Law Traditions, With Special Reference to French, German, English. 2nd ed. St Paul: West., 11 ff), but it is the book An Introduction to Comparative Law (1977) by Kötz and Zweigert, that contains an exhaustive presentation of the functional approach and had an enormous influence on the scholarly community. The authors’ essential idea, on which the method is grounded, is that the legal systems of the world and their societies regularly face similar problems and solve them through different means, but very often reaching similar results. Essentially, functional comparison posits preaesumptio similitudinis (the presumption of similarity) among legal systems; in consequence, if questions are posed from a functional perspective, free from national descriptive and conceptual frameworks, the outcome of research will be necessarily concrete and neutral data (Kötz and Zweigert 1977Kötz, Hein and Konrad Zweigert 1977 An Introduction to Comparative Law. 1st Ed. Amsterdam: North-Holland.).

Functional comparison is currently practiced in comparative-law circles, yet criticism of this method has been growing for decades. Remarks focus on a few aspects of functionalism (Michaels 2019Michaels, Ralf 2019 “The functional method of comparative law”. In The Oxford Handbook of Comparative Law, edited by Michael Reimann and Reinhard Zimmermann, 339–382. Oxford: Oxford University Press.; Kischel 2019Kischel, Uwe 2019 Comparative Law. Oxford: Oxford University Press., 90), but one of the main bones of contention is the very idea of praesumptio similitudinis and excessive attention given to similarities. This assumption is contested as contradictory to the very nature of comparative law, which, as a scholarly field, should be strongly involved in analyzing not only similarities, but also differences. When analyzing elements of a legal system, the fundamental stance of comparative law scholars is to provide an impartial and deep comparison, free from presumptions. Indeed, the contention that the functional method fails to provide an actual and objective full comparison leads to the subsequent argument that this method does not account for the cultural context of the legal systems studied; doing away with the specific dimensions of the local legal culture this method reduces the functionalist analysis to the crude results of the application of a rule. Thus, the contemporary criticism of the functional method insists on the complexity of law as a phenomenon, and of the need to investigate all elements of legal culture, such as values, style, tradition, techniques, just to mention some examples.

A completely different description of the legal phenomena as the methodological basis for comparison is offered by an alternative approach to comparative law: structuralism.

In Italy, the structural comparison was advanced by the leading comparatists of the last century. According to some authors, one of the merits of twentieth-century Italian comparative legal studies is, indeed, “the assault upon the conventional wisdom which extols the unity of the law and ignores the multiplicity of the components making up the world’s legal systems” (Graziadei 2003Graziadei, Michele 2003 “The functionalist heritage.” In Comparative Legal Studies: Traditions and Transitions, edited by Pierre Legrand and Roderick Munday, 100–128. Cambridge: Cambridge University Press. ). This is the core of Rodolfo Sacco’s contribution to comparative law, one of the methods intended to go beyond the mere description of functional solutions. Since the answer to the question of “how comparative law research should be done” requires attention to the composition of each system under analysis and of its multiple cultural layers, Sacco’s doctrine is classified as structuralism.

According to Sacco, there are different “formants” of the law, a plurality of norms and institutions, which are active components and contribute to cultural features of each legal system (1991Sacco, Rodolfo 1991 “Legal Formants: A dynamic Approach to comparative Law.” The American Journal of Comparative Law 39(1):1–34. , 21 ff). In essence, formants are norms, but do not necessarily coincide with those norms produced and contained in the official sources of the law of the legal system under analysis. This coincidence is always present when statutes are analyzed, as in all the legal systems legislation is an important official source of the law. Thus, the so called “legislative formant” coincides with legislation as a source of the law.

However, there are other legal formants. The “case law formant” refers to the norms contained in court decisions which are an official source of law in the Common law countries but not in the civil law ones. The same applies to interpretations by scholars (“scholars’ formant”), which suggest or interpret rules. These formants have a status of official legal rules in some legal systems (e.g. the Muslim legal systems) but not in others.

This method moves from the undisputed premise that the legal systems are not monolithic, but composed of various formants; their visualization contributes to understand how a legal system is structured and the cultural dimension of the law. Thus, a legal system shows its complexity and cultural asset thanks to the breakdown of its essential elements (Sacco 1991Sacco, Rodolfo 1991 “Legal Formants: A dynamic Approach to comparative Law.” The American Journal of Comparative Law 39(1):1–34. , 21).

Regardless of the merits of functionalism – neutrality being one of them – while this method strives to provide appropriate solutions by “measuring” similarities by means of a straightforward and radical approach, structuralism analyses include an implicit description of the cultural context in which legal systems are embedded.

This is particularly relevant in the analysis of EU legal language and EU legal concepts. As will be demonstrated, the outcomes of interpretation and application of EU law and terminology by national courts of different Member States could be qualified as formants and, consequently, as norms.

National judges currently apply EU law not by simply providing pragmatic solutions for the specific matter at stake, but by formulating norms with the awareness of contributing to ascribing a meaning to EU law. This interpretation contributes to identifying and determining the development and consolidation of norms and concepts of EU legal sources, as well as shared contexts of meanings, common to a few national EU legal systems.

However, as in the case of functionalism, structuralism, and the legal formants in particular, are also subject to criticism in the contemporary methodological debate. For example, Kischel underlies obviousness as the main objection to the theory of the formants. He argues that it is obvious that there is not one legal rule – as a solution – for each question in all legal systems and that there is no legal system free from contradiction (2019Kischel, Uwe 2019 Comparative Law. Oxford: Oxford University Press., 106–110).

As a method, structuralism has nevertheless proved useful for research purposes33.See the project The Common Core of European Private Law, coordinated by Ugo Mattei and Mauro Bussani, https://​common​-core​.org/. and applied projects.44.See projects IMOLA I, II and III https://​www​.elra​.eu​/imola​-iii/ on the harmonization of land registry of immovable property by the European Land Registry Association (ELRD). The project methodology is based on the theory of the formants, which was used to structure the “ELRD”, the land registry template ensuring the interoperability of the EU property land registries (Ioriatti and Giacomini 2022Ioriatti, Elena and Sara Giacomini 2022 “Land registry interconnection and comparative law: towards a future aligned with EU digital transformation policy.” In The European Land Register Document (ELRD): A common Semantic Model for Land Registers Interconnection, edited by Aanabel Fraga and Elena Ioriatti, 63–81. Brussels: European Commission.). Putting aside theoretical evaluations of this method, legal formants and semiotic signs are functional references useful to observe EU legal language from the outside and to frame the reality into conceptual tools. Through the case law formants, particularly, it is possible to see how the judges of the different Member States interpret the EU terminology and whether there is a convergence in the meanings given to these terms.

The possible answer to the question of the EU meaning of supranational legal concepts, autonomous and detached from any national cultural context, may be found by visualizing the already existing contexts of meaning, produced by the interrelation of the EU legislation and national formants.

4.Semiotics and the meta-concept

In Sebeok’s Introduction to Semiotics (2001Sebeok, Thomas 2001 Signs: An Introduction to Semiotics. 2nd ed. Toronto: University of Toronto Press, Scholarly Publishing Division.), semiotics (“semiology” in de Saussure’s definition) is both a discipline and a technique for studying anything that produces signs (Burks 1958Burks, Arthur W. 1958 The Collected Papers of Charles Sanders Peirce. Vol. 7. Cambridge, MA: Harvard University Press.; de Saussure 2011de Saussure, Ferdinand 2011 Course in General Linguistics, edited by Perry Meisel and Haun Saussy. New York: Columbia University Press.). More and more law studies (Grossfeld 2010Grossfeld, Bernhard 2010 Dreaming Law: Comparative Legal Semiotics. Frankfurt: German Law Publishers., Ricca 2022Ricca, Mario 2022 “Perpetually Astride Eden’s Boundaries: The Limits to the ‘Limits of Law’ and the Semiotic Inconsistency of Legal Enclosures.” International Journal for Semitics of Law 35:179–222. ), research on legal education (Broekmann and Backer 2015Broekman, Jan M. and Larry Catà Backer eds. 2015 Signs In Law – A Source Book: The Semiotics of Law in Legal Education III. Berlin: Springer. ) and comparative law (Ioriatti 2013Ioriatti, Elena 2013 Interpretazione comparante e multilinguismo europeo. Padova: Cedam.; Šarčević 2016Šarčević, Susan ed. 2016 Language and Culture in EU Law: Multidisciplinary Perspectives. Abingdon: Routledge. ) are indebted to semiotics.

As for comparative law, comparatists have borrowed conceptual tools from linguistics and semiotics for a long time. Just to give a notable example, Sacco’s (1965)Sacco, Rodolfo 1965 “Définitions savantes et droit appliqué dans les systèmes romanistes.” Revue Internationale de Droit Comparé 17(4):827–837. proposal on formants in legal systems was in part inspired by de Saussure’s theory on language components.

With regard to multilingual law, current studies emphasize the need for a more in-depth interdisciplinary approach which relies on semantic tools to improve the understanding of the linguistic nature of EU law. Two semiotic approaches are of particular interest: one giving a neutral and innovative qualification of EU law as a “system of signs” (Robertson 2016Robertson, Colin D. 2016 Multilingual Law: A Framework for Analysis and Understanding. Abingdon: Routledge. ) and the other as a “meta-juridical language” (Turi 1990Turi, Joseph-G. 1990 “Le droit linguistique et les droits linguistiques.” Les Cahiers de droit 31(2):641–650. ; de Groot 1999de Groot, Gérard René 1999 “Das Übersetzen juristischer Terminologie.” In Recht und Übersetzen, edited by Gerard R. de Groot and Rainer Schulze, 11–46. Baden-Baden: Nomos.; Galdia 2003Galdia, Marcus 2003 “Comparative law and legal translation.” The European Legal Forum (E) 1:1–4.; Cornu 2005Cornu, Gérard 2005 Linguistique juridique. Paris: Montchrestien., Klimas and Vaiciukaite 2005Klimas, Tadas and Jurate Vaiciukaite 2005 “Interpretation of European Union Multilingual Law.” International Journal of Baltic Law 3:1–13.; Rösler 2012Rösler, Hannes 2012 “Interpretation of EU law.” In The Max Planck Encyclopedia of European Private Law, edited by Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann and Andreas Stier, 979–982. Oxford: Oxford University Press.).

As for the former, one of the relevant applications of semiotics to multilingual law is Robertson’s volume Multilingual Law: A Framework for Analysis and Understanding (2016Robertson, Colin D. 2016 Multilingual Law: A Framework for Analysis and Understanding. Abingdon: Routledge. ). This inspirational book is an extensive source of interdisciplinary information on multilingualism derived from different areas of knowledge: law, language, semiotics, translation, technology. Robertson’s merit is, in particular, to have formulated the advantages of thinking about multilingualism in terms of a sign system.

Multilingual law consists of a single legal message expressed in more than one language. As a consequence, at least one of the legal languages in which law is formulated (but often enough all of them) is not the expression of a specific legal, cultural or national context (Beaupré 1986Beaupré, Michael 1986 Interpreting bilingual legislation. 2nd ed. Toronto: Carswell.). What is lacking is the necessary connection between the legal concept and the idea that such concept should express (Sacco 2000Sacco, Rodolfo 2000 “Langue et Droit.” In Langue et Droit, XV International Congress of Comparative Law (Bristol 1998), Collection des rapports, edited by Eric Jayme, 229–260. Brussels: Bruylant.), since it is the natural linguistic-legal expression of an endemic legal-cultural tradition. The absence of connection between a concept and legal ideas is obvious in European terminology, made of neologisms that are disconnected from specific national contexts of reference. However, it would be naive to think that national jurists called to interpret and apply an EU concept are always able to completely let go of their education, forma mentis and cultural legal background. The meaning of an EU concept, for as “autonomous” as it can be in its institutional form, can always encounter the filter of the personal legal culture of the judge or scholar called to apply it (Engberg 2016aEngberg, Jan 2016a “Word meaning and the problems of a globalized legal order.” In The Oxford Handbook of Language and Law, edited by Peter Tiersma and Lawrence D. Solan, 175–186. Oxford: Oxford University Press.).

This happens because the interpreter sees the EU legal concept expressed in his/her language as: (a) a legal message, (b) necessarily applied to his/her context of reference. Robertson (2016)Robertson, Colin D. 2016 Multilingual Law: A Framework for Analysis and Understanding. Abingdon: Routledge. gives an example: first, one person (a national interpreter of an EU concept) perceives the linguistic sign in a specific way, whereas a second viewer (a national interpreter from a different legal system) perceives it in a different manner. The perspective changes surprisingly if the interpreter mentally approaches the European term in terms of a sign rather than a concept.

In Robertson’s words “if instead of thinking in terms of norm and concept, we think in terms of signs, we have a way to handle subjective information in an impartial third person way, without making value judgement on it” (2016Robertson, Colin D. 2016 Multilingual Law: A Framework for Analysis and Understanding. Abingdon: Routledge. , 135). From the semiotic perspective, the third impartial person is also a viewer, an impartial observer, but attempts an objective interpretation.

This approach favours a holistic and neutral observation of EU legal language, free from technical details and legal meanings that are inevitably present in each language version. From this perspective, EU legal concepts form a horizontal system of linguistic signs, in which each system formally and ideally bears the same legal concept as containing an inter-lingual synonym (Turi 1990Turi, Joseph-G. 1990 “Le droit linguistique et les droits linguistiques.” Les Cahiers de droit 31(2):641–650. ). It is the form giving the same meaning to a new multilingual reality expressed in all official languages (Robertson 2009Robertson, Colin D. 2009 “LSP and EU Legal Language.” In Reconceptualizing LSP. Online proceedings of the XVII European LSP Symposium, edited by Carmen Heine and Jan Engberg, 1–7.). In most cases, multilingual term formulations are no more than an approximation of the ideal expression of an EU norm that pre-exists its transferability into a common linguistic framework in all the languages.

Thus, if EU law is objectively viewed as a system of signs, it eliminates the risk that national interpreters will not see “the forest for the trees” when they focus on a single concept in their own national language versions.

As noted above, along with the framework viewing EU law as composed of interrelated linguistic signs, another semiotic instrument is the meta-language, the goal of which is also to determine layers of meaning of a language that make up a meaningful whole. Here, the branch of semiotics dealing with the language of the law is of interest to multilingual studies where the meta-language, “also described as “a (legal) language speaking of another legal language” (Jori and Pintore 2014Jori, Mario and Anna Pintore 2014 Filosofia del diritto. Turin: Giappichelli., 179), is used to analyse different levels of a legal discourse. For instance, a hierarchy overlap of norms, such as constitutional norms, establishing certain principles as language boundaries (meta-language), which ordinary legislation (statutes) must consider; similarly, ordinary legislation is composed of words that guide the application of its norms in court decisions. The latter is a typical example of meta-legal language: the linguistic formulation of a legislative norm prescribing a specific meaning that a given norm must have, for instance, an article of the civil code and a court judgement that applies that article.

As noted already, the interdisciplinary approach proposed in this chapter necessitates the application of methods derived from disciplines other than comparative law – semiotics, in this case – in order to analyse the specific features of EU legal language.

In this regard, the semiotic concept of meta-language is a useful observation point to study the relation between the legal language of the European drafter (EU legislative formant) and the legal language of national courts (case law formant), which interpret and apply such legislation, as well as that of the national drafter transposing it (national legislative formant). From this semiotic angle, EU law is viewed as a meta-language since the norms contained in the Treaties prescribe some content of secondary legislation, in particular directives and regulations, as meta-norms in semantic terms, which in turn prescribe some content of the lowest level norms: court decisions or content of directive-transposing national legislation.

In the case of EU law, the qualification of EU secondary law as a meta-language is a conceptual tool useful to frame EU norms as a linguistic formulation to be completed by a second level of norms at the national level. This semantic exteriorization of EU legislation highlights the role of national formants in attributing meaning to EU neologisms. Thus, EU directives and regulations are linguistic formulations – composed of meta-norms and meta-concepts – prescribing a specific juridical content that has to be completed by the second level of norms or concepts, which are enacted (national legislation transposing EU law) or formulated (national case law) at the national level.

In this regard, the argument advanced in this chapter – supported by actual observation (see Section 5) – is that national case law, and national legal formants in general, do contribute to the meaning of EU concepts. Viewing EU legislation as a meta-language, composed of meta-norms and hence meta-concepts, has proved to be useful as it constructs a mental image that helps to objectively observe the phenomenon.

5.Meta-concepts and EU formants

Comparative law structuralism recognizes solutions to legal matters in terms of norms and hence formants. As noted above, the formant – borrowed from phonetics – denominates norms formulated by the lawmakers (legislative formant), decided by courts (case law formant) and elaborated in scholarly works (doctrinal formant) with regard to a specific legal matter.

Given the institutional structure of the EU, which gives jurisdiction on EU law to national courts and the obligation to transpose (directives) or draft EU secondary law in a national version (regulations), national case law and legislation transposing EU directives (and doctrine on EU law) are also components of EU law (Bell and Ibbetson 2012Bell, John and David Ibbetson 2012 European Legal Development: The Case of Tort. Vol. 9. Cambridge: Cambridge University Press. , 3) – hence formants.

Thus, the meaning of an autonomous EU meta-concept may be found by visualizing the already existing context of meaning, produced by the interrelation of the EU legislation and the national formants. The following case study visualizes the proposed theoretical framework with a legal concept of possession derived from EU Framework Directive 2008/98 on waste (2018 version. Hereinafter “Directive on Waste”), which was enacted as part of the EU action on environment protection. Article 3.6 by listing the definitions of the terms of the Directive, comprises the term possession,66.The case study reports the English version of the Directive on Waste and not the concept of possession in the English legal system: because of Brexit, the English legal system is not included in this exercise. In consequence, the term possession is: (a) the term present in Article 3(6) of the Directive on Waste, and (b) the term used in this chapter to express Besitz/possesso/ possession/Bezit in English. an abstract legal concept in the Member States’ private law:

3.6:

“waste holder” means the waste producer or the natural or legal person who is in possession of the waste”.

The following figures visualize how possession is regulated in national legislations of selected EU Member States’ legal systems (Figure 1) and in Article 3.6 of the Directive on Waste (Figures 2 and 3).

The majority of the national legal systems qualify a factual situation as possession when two elements are present at the same time: the first one is of a material nature, “the actual control on the good exercised by the possessor”. The second element, the “animus domini” (or even “animus possidendi”), is a psychological one and can be described as the intention of the possessor to behave as an owner. When there is no animus, but a material control only, the situation is qualified as holding or detention. Detention 77.Please note that detenzione (detention) in the Italian legal language is a polysemy, as the term is present in the Civil Code with the meaning of “power of fact over a thing without animus domini, but at the same time detenzione is present in the Code of Criminal Procedure as a sanction (custody). is a power of mere fact, exercised over a thing by the holder who has no intention of carrying out an activity corresponding to the exercise of the property (ownership): the holder has a mere animus detinendi, and not an animus possidendi, as he/she recognizes that the thing belongs (property) to another person.

With the exception of Germany, the private law of the legal systems described in the table distinguishes between possession and holding/detention.88.The distinction is regulated in the Civil Codes of Austria, Belgium, France, and Italy; in legislation in Bulgaria: Ownership Act, 1951 as amended (Last amendments: February 2020). Particularly, the concepts of Besitz (Austria), possesso (Italy), владение (Bulgaria) and possession (Belgium and France) denote “material control on a good/property” with animus domini. By contrast, the concepts of Innehabung (Austria), detenzione (Italy), държане (Bulgaria), deténtion (Belgium and France) denote “material control on the good without animus domini”.

In contrast to Austria,99.On the different meaning of Besitz in the German legal language of Germany, Austria, and Switzerland see Sacco (1991Sacco, Rodolfo 1991 “Legal Formants: A dynamic Approach to comparative Law.” The American Journal of Comparative Law 39(1):1–34. , 11–12). for instance, Germany’s term Besitz does not include the requirement of animus domini.1010.§ 854 BGB Acquisition of Possession. “(1) Possession of a thing is acquired by obtaining actual control over the thing”. Furthermore, German law has not adopted the distinction between possession and holding. The broad notion of Besitz covers both the situation when the possessor holds the good for himself/herself (Eigenbesitz) and the situation when s/he holds the good (property) for another (Fremdbesitz) (McGuire 2011McGuire, Mary-Rose 2011 “National Report on the Transfer of Movables in Germany.” In National Reports on the Transfer of Movables in Europe, Volume 3: Germany, Greece Lithuania, Hungary, edited by Wolfgang Faber and Brigitta Lurger, 1–192. Munich: Sellier, European law publishers., 45)1111.The distinction between Innehabung and Besitz in German law may be derived from a comparison of §872 with §854. §872 provides that a person is called a proprietary possessor (Eigenbesitzer) if s/he possesses the thing as belonging to him/her, therefore with an animus rem sibi habendi. It can be inferred that the intention with which a person holds physical control is of significance. Case law argues for a very general animus possidendi, which as a rule does not need to be further specified and will be presumed to exist and the majority of legal doctrine demands an indication of the intention to acquire possession (Besitzbegründungswillen) (McGuire 2011McGuire, Mary-Rose 2011 “National Report on the Transfer of Movables in Germany.” In National Reports on the Transfer of Movables in Europe, Volume 3: Germany, Greece Lithuania, Hungary, edited by Wolfgang Faber and Brigitta Lurger, 1–192. Munich: Sellier, European law publishers.: 45, 46). and hence regardless of the animus domini requirement.

Let us now analyse the concept of possession used in the definition of waste holder in Article 3.6 of the Directive on Waste, worded as follows in the English version: “‘waste holder’ means the waste producer or the natural or legal person who is in possession of the waste.” Languages take similar approaches. For example, French uses the term possession 1212.Art. 3.6 « détenteur de déchets »: le producteur des déchets ou la personne physique ou morale qui a les déchets en sa possession. while German – Besitz 1313.Art. 3.6 “Abfallbesitzer” den Erzeuger der Abfälle oder die natürliche oder juristische Person, in deren Besitz sich die Abfälle befinden. and Italian – possesso.1414.Art. 3.6 « detentore di rifiuti » il produttore dei rifiuti o la persona fisica o giuridica che ne è in possesso. Only Bulgarian goes in a different direction,1515.Art. 3.6 „притежател на отпадъци“ and причинителят на отпадъци или физическото или юридическото лице, което има фактическа власт върху отпадъците. as will be shown below.

With the exception of Bulgarian, all the official language versions under analysis have chosen to rely on the same term used in their respective national systems to denote the key concept possession.

The EU meta-concept comes in handy at this point. It is important to remember that these national terms of the Directive also denote EU meta-concepts, bearing an autonomous European meaning. It is well known that norms are not always strictly linked to their literal linguistic expression. This example demonstrates what comparative law calls the dissociation between the formal definition and the operational rules: different operative rules can be found in the formants of different legal systems, regardless of whether formal definitions are similar or not.

Thanks to the observation of the national formants, in the case under analysis the autonomous European meaning can be uncovered. A decision of the Italian Administrative Court1616.Tribunale Amministrativo Regionale Brescia 29/01/2018. (2018), ruling on the meaning of the key concept possesso in the Italian version of the Directive on Waste, provided as follows: “The Italian notion of “possesso” and “animus possidendi” is not applicable since the cost of waste provided in the EU directive is not grounded on the intention of the holder/possessor to behave as an owner (with animus possidendi), but on the duty of care owed by him.”1717.Translated by the author. According to the Italian courts, in contrast to its Italian variant, the EU concept of possesso does not require animus domini, but simply a material control on the good (waste).

Let us try to add other formants to the same exercise. The Belgian national decree transposing the Directive on Waste provides as follows “the possessor is also the person who does not have the physical possession of the waste”.1818.qui n’ont pas la possession physique des déchets. Bulgaria formulated the same norm of the Directive on Waste in a way that excludes animus possidendi from the waste holder: “waste holder” means the producer of the waste or the natural or legal person having actual power over the waste.1919.Emphasis added. Unofficial translation. The official text reads in Bulgarian: „притежател на отпадъци“ and причинителят на отпадъци или физическото или юридическото лице, което има фактическа власт върху отпадъците.

The results of this exercise invite further reflection. As noted above, the Italian decision, the Belgian legislation transposing the Directive on Waste and the Bulgarian version of this Directive attribute a different meaning to the term possession than that denoted by the same term at the national level. In these versions of the Directive the concept possession does not presume animus domini in the intention of the person having material control on the waste. Furthermore, the Belgian decree and the Bulgarian version confirm the same EU meaning as the Italian case law formant.

As noted above, national case law seems to be more than active in EU meaning construction. Yet, it should also be underlined that as shown in Figure 3, EU meta-concepts acquire meaning once they are included into the judicial hermeneutical process and turn into final consolidated concepts after being interpreted, applied, and qualified in court decisions. Other national formants (e.g., national legislation transposing EU law) also contribute to this consolidation process. For instance, the decree transposing the Directive on Waste in Belgium leads to the same results. The fact that the Bulgarian version of the Directive adopted the phrase “material control in general” from the very beginning, regardless of the other language versions, is another aspect worthy of attention.

This example demonstrates that the qualification of the concept possession in the Directive on Waste as an EU meta-concept and the interpretation according to the EU legislative intent by the national formants lead to qualify the EU possession as material control on the good regardless of “animus domini”. As a consequence, the consolidated EU concept possesso, possessions, Besitz in the Directive on Waste means “material control on the good in general”.

6.Conclusions

The efforts made by comparative law to study the EU legal language have drawn attention to different profiles of this supranational and linguistically structured juridical phenomenon. Among them, the growing focus is placed on how European multilingual concepts are perceived in the national legal systems. However, more attention should be paid to the contribution of national case law and legislations transposing EU secondary law to the construction of the EU consolidated terminology.

This contribution argues that if EU concepts are disconnected from specific national cultural contexts of reference, their meaning is unstable and not necessarily harmonized. Thus, the national and cultural formants grounding the practice of EU law in the Member States are of crucial importance.

With this aim in mind, the semiotics approach to EU concepts as signs has advanced an overall and neutral observation of EU legal language, freeing it from the technical details and legal meanings that are inevitably present in each language version. When EU legislation is studied from the semiotic point of view as a “meta-language” it becomes clear that its terminology needs to be completed by the case law (or by the national legislation implementing it) in the Member states as a second level of norms at the national level. This semantic exteriorization of EU legislation highlights the role of the national formants in attributing meaning to EU neologisms.

This interdisciplinary framework shows the danger of seeking the meaning of EU law solely from the perspective of EU legal language as a purely supranational language; indeed, the search of meanings of EU legal language should actually be found less in the heights of abstraction and more in the specific decisions of national courts and provisions of legislations transposing EU law: thus, in the normative results which they have generated as EU formants in terms of EU meta-concept consolidation.

Nevertheless, this interdisciplinary framework is based on a scientific observation of the reality, that is to say of how the relationship among the components of the EU legal system really works. Semiotics and comparative law methods help to observe a given problem by framing it into a tool, as illustrated by the case study of the EU meta-concept possession consolidated by the national formants.

From a traditional and positivistic point of observation the EU is a system of norms to which national laws are hierarchically subordinated. However, this is only one of the ways in which the relationship between the EU and the Member States could be described.

From a different, comparative law perspective, the EU legal system could be also viewed as a shared supranational polycentric institution, producing norms according to the institutional interaction between the national and European level (Bobić 2019Bobić, Ana 2019 “The shared system of rules in a polycentric European Union.” In Polycentricity in the European Union, edited by Josephine van Zeben and Ana Bobić, 141–162. Cambridge: Cambridge University Press. , 143 and 161). In this more realistic and dynamic approach EU formants are components of a shared, unique system of norms and contribute to the construction of characteristics of concepts.

By looking at the same matter in this more profound and realistic way, the focus should not be placed on how each EU meta-concept is hierarchically enriched by each national court or transposed by legislative drafters, but on the visualization of a constant and dynamic flow among legislative supranational norms and by the cultural profile of each legal system, introduced into the EU norms by the national formants.

Common contexts of meanings do already exist in Europe, and are slowly creating a shared European normative and conceptual culture, as demonstrated by the case study on the EU concept possession.

In this ongoing process comparative law is a lantern (Grosswald-Curran 2019Grosswald Curran, Vivian 2019 “Comparative Law and Language.” In The Oxford Handbook of Comparative Law, edited by Michael Reimann and Reinhard Zimmermann, 675–707. Oxford: Oxford University Press., 675), along with semiotics, lightening European common contexts of meanings from inside the consolidated EU autonomous concepts.2020.This approach is flexible enough to be carried out in all national languages, which would certainly enrich the case study. The construction of the consolidated concept as illustrated by possession is neutral from a linguistic point of view and was previously illustrated in different languages (Italian, French, English) (see Ioriatti 2021Ioriatti, Elena 2021 “Comparative law and EU legal language: towards a European Restatement?” Global Jurist 21(2):305–340. ).