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Ambiguity in EU Law Ambiguity – an expression or utterance giving rise to at least two mutually exclusive interpretations – has been traditionally regarded as an ever-present, and therefore trivial, feature of EU law, alongside other forms of linguistic indeterminacy. At the same time, ambiguity has been condemned as a perilous defect in the legal text, since it is commonly assumed that the Court of Justice of the EU (CJEU) would necessarily exploit it to engage in judicial activism. In contrast, more recent theories present ambiguity as a means of promoting greater acceptability and coherence, while trusting the CJEU’s willingness to exert judicial restraint for the benefit of judicial co-operation. This groundbreaking work challenges some of the theoretical assumptions about ambiguity in EU law and puts forward a more accurate and complete theory about the CJEU’s strategic use of ambiguity. Ambiguity is here transformed from an underestimated or misunderstood detail of undetermined significance to a desirable systemic feature of the EU legal order with concrete properties and impact. Ambiguity as the implicit basis of the CJEU’s decision-making is shown to be strategically valuable for the implementation of the authority of EU law at some of the most pivotal moments in the evolution of the EU legal order. This interdisciplinary investigation presents in-depth linguistic and legal analysis of ambiguity found in the text of key provisions of EU Treaties and in the language of some of the CJEU’s leading preliminary rulings in the area of fundamental rights, freedom of movement and EU citizenship. The book suggests a categorisation of examples, basic guidance about the type of case and situation where the phenomenon is likely to emerge as well as an assessment of the advantages and disadvantages of this unusual judicial technique. The book will be a valuable resource for researchers and academics working in the areas of Law and Language, Public International Law, EU Law, and Multilingualism. Dr. iur. Sofya Kartalova is a Postdoctoral Researcher at the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law, Freiburg im Breisgau, Germany. Law, Language and Communication This series encourages innovative and integrated perspectives within and across the boundaries of law, language and communication, with particular emphasis on issues of communication in specialized socio-legal and professional contexts. It seeks to bring together a range of diverse yet cumulative research traditions in order to identify and encourage interdisciplinary research. The series welcomes proposals – both edited collections as well as single- authored monographs – emphasizing critical approaches to law, language and communication, identifying and discussing issues, proposing solutions to problems, offering analyses in areas such as legal construction, interpretation, translation and de-codification. Series Editors Anne Wagner is Professor of Legal Semiotics and Research Professor at Centre de Recherche Droits & Perspectives du Droit, équipe René Demogue, Lille University, France. She is the Editor-in-Chief of the International Journal for the Semiotics of Law (Springer) and President of the International Roundtables for the Semiotics of Law. She has been awarded the National Research Grant for her research career. Her main research interests include semiotics, verbal and non- verbal sign system analyses, language and law, legal culture and heritage, legal translation, legal terminology, and legal discourse studies. Vijay K. Bhatia, formerly Professor of English, City University of Hong Kong, is now Adjunct Professor at Chinese University of Hong Kong, and Visiting Professor at the Hellenic American University, Athens (Greece). He is also the founding President of the Languages for Specific Purposes and Professional Communication Association for Asia-Pacific. His research interests include Critical Genre Analysis, academic and professional discourses in legal, business, newspaper, and promotional contexts; ESP and Professional Communication; simplification of legal and other public documents; intercultural and cross- disciplinary variations in professional genres. Titles in the series Law, Language and the Courtroom Legal Linguistics and the Discourse of Judges Edited by Stanisław Goźdź-Roszkowski & Gianluca Pontrandolfo Ambiguity in EU Law A Linguistic and Legal Analysis Sofya Kartalova Fair Trial Rights and Multilingualism in Africa Perspectives from Comparable Jurisdictions Catherine S. Namakula For more information about this series, please visit: www .routledge .com /Law -Language -and -Communication /book -series /LAWLANGCOMM Ambiguity in EU Law A Linguistic and Legal Analysis Sofya Kartalova First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Sofiya Kartalova The right of Sofiya Kartalova to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. This book is a revised version of a dissertation accepted by the Faculty of Law of the University of Tübingen in 2020. The library number is D21. The author acknowledges the generous support provided by the Research Training Group 1808: “Ambiguity – Production and Perception” at the University of Tübingen, which is funded by the DFG (Deutsche Forschungsgemeinschaft) under project-number: 198647426. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-27990-9 (hbk) ISBN: 978-1-032-27991-6 (pbk) ISBN: 978-1-003-29487-0 (ebk) DOI: 10.4324/9781003294870 Typeset in Galliard by Deanta Global Publishing Services, Chennai, India To my parents Contents Acknowledgements ix PART 1 In Search of the Strategic Value of Ambiguity for the Authority of EU Law 1 1 Introduction 3 2 Ambiguity in Legal Texts 8 3 Ambiguity in EU Law 17 4 A Framework for Analysis 42 PART 2 The Case Studies 53 1 Judicial Activism Reconsidered?: The CJEU’s Strategic Resolution of Ambiguity in Melloni (Case C-399/11) 55 2 Judicial Activism Reinvented?: The CJEU’s Strategic Production of Ambiguity in Åkerberg Fransson (Case C-617/10) 81 3 Judicial Restraint Reconfirmed?: The CJEU’s Strategic Resolution of Ambiguity in Keck (Joint cases C-267/91 and C-268/91) 115 4 Judicial Activism in Retrospect?: The CJEU’s Strategic Resolution of Ambiguity in Ruiz Zambrano (Case C-34/09) and Dereci (C-256/11) 146 viii Contents PART 3 Ambiguity as a Desirable Systemic Feature 185 Ambiguity as a Desirable Systemic Feature of the EU Legal Order 187 Appendix A: Multilingual Analysis – Åkerberg Fransson (C-617/10) 201 Appendix B: Multilingual Analysis – Keck (Joined cases C-267/91 and C-268/91) 206 Bibliography 211 Index 230 Acknowledgements This book is a revised version of my dissertation “The Strategic Value of Ambiguity for the Authority of EU Law in the Dialogue between the Court of Justice of the European Union and the National Courts”, which was accepted in 2020 by the Faculty of Law at the University of Tübingen (Eberhard Karls Universität Tübingen), Tübingen, Germany. I would like to sincerely thank my supervisor, Prof. Dr. Wolfgang Forster, for his steadfast support and helpful advice. I am also very grateful to my other two supervisors, Prof. Dr. Martin Nettesheim and Prof. Dr. Joachim Knape, as well as to Prof. Dr. Stephan Dusil, who presided the examination committee at the defence of my doctoral dissertation, for their insightful and useful comments. I would like to acknowledge the generous support provided by the Research Training Group 1808: “Ambiguity – Production and Perception” (Graduiertenkolleg 1808: “Ambiguität – Produktion und Rezeption”) at the University of Tübingen (Eberhard Karls Universität Tübingen), which is funded by the DFG (Deutsche Forschungsgemeinschaft) under project-number: 198647426. As a Research Assistant (Wissenschaftliche Mitarbeiterin) at Research Training Group 1808: “Ambiguity – Production and Perception”, I explored the linguistic phenomenon of ambiguity alongside researchers of a wide range of academic backgrounds (Linguistics, Literary Criticism, Rhetoric, Law, Theology, Psychology, Media Studies, and Philosophy/Ethics) and levels of seniority (PhD students, PostDocs, and Professors). I thank them all for our regular stimulating discussions and enjoyable and friendly collaboration. More specifically, I would like to express my gratitude to Prof. Dr. Matthias Bauer, Prof. Dr. Angelika Zirker, and Inken Armbrust for the great kindness, unwavering support, and faith in my abilities as a researcher that they have shown me time after time. I would also like to thank Professor Anne Lise Kjær, Prof. Dr. Ralf Poscher, Prof. Dr. Isolde Burr-Haase, Dr. Gregory Scontras, Professor Shai Dothan and Professor Jan Komárek for their expert advice and helpful comments on my research at various stages of my doctoral studies. I am also grateful to iCourts – the Danish National Research Foundation’s Centre of Excellence for International Courts at the University of Copenhagen, for giving me the excellent opportunity to participate in their Visiting programme in February and March 2018 and benefit from the welcoming attitude and first-rate expertise of the researchers there.