text:
water.1 Shall we say that the scroll is itself a Get because of the portion it contains relating to 'cutting off'?2 We require that it should be written for that woman specifically,3 which is not here the case. If you should plead that possibly he gave, beforehand, a fee4 to the scribe [to write the passage in the scroll specifically for her], this also is unavailing, since we require [the insertion5 of] his name and her name, the name of his town and the name of her town, which we do not [find here]. What does [then] R. Joseph teach us here?6 — That gall-nut water makes no writing on [a sheet treated with] gall-nut water.
Our Rabbis have taught: '[The Scripture says] And he shall write ["the writ of divorce"], which implies that he is not to grave it.' From this we would conclude that graving is not counted as writing. This, however, seems to be in contradiction with the following: A slave who produces a deed engraved on a tablet or a board is legally emancipated, but not if the writing is woven into a woman's headband or a piece of embroidery?20 — Said 'Ulla in the name of R. Eleazar: There is no contradiction. Graving is invalid if the letters are in relief,21 but valid if they are hollowed out.22 [You say that if the letters are] in relief it is not [valid]. Does not this contradict the following? 'The writing [on the High priest's plate]23 was not sunk in but projected like that on gold coins.' And is not [the inscription on] gold denarii in relief? — [It was] like [the inscription on] gold denarii and yet not like it. [It was] like it in the fact that it projected, but it was unlike it because there [in gold denarii the metal is hollowed] round the letters,24 but here [in the High Priest's plate] the letters themselves25 were hollowed out.
At that time all parchment scrolls of the Law were treated in this way. Hence there was no proper writing from the outset, and consequently no Get.
Lit., 'he shall write for her' (which means) 'in her name'.
[his rendering omits the word [H] which is inserted in the text only inadvertently as a quotation from infra 80a; v. Rashi.
Seeing that all this is obvious.
The four letters Yod, He, Waw, He.
The five letters Yod, He, Daleth, Waw, He.
Ex. XV, 2. The words are expounded to signify. 'Beautify thyself before Him in the performance of religious duties'.
By paying the scribe's fee, which she was required to do according to the Rabbinical rule, v. B.B. 168a.
According to the principle. 'The Beth din has power to expropriate'. V. infra 36b.
E.g.. a leaf of a tree of 'orlah (v. Glos.). Such things had naturally no monetary value.
E.g., a pile of olive leaves may be bought for lying on or for feeding cattle. The Mishnah affords then no support to the message from Eretz Israel.
Lit., 'it was not praised'.
Because when it was not approved at first, Levi took the trouble to obtain additional authority.
Lit., 'if he carved out the interior (of the plate)'.
Lit., 'if he carved out the thighs (of the letters)'.
Lit., 'the thighs'. They were pressed forward from the back and so projected in front.
If it scrapes out the metal round the letters, the use of it is not writing; but it is if the letters are formed by compression.
it does not write, and [for the plate] 'writing' was required?1 — It was like [the inscription on] gold denarii and yet not like it. It was like it in the fact that it stood out, but not like it in the fact that there [in a coin] the pressure is applied on the same side [as the inscription], but here [in the plate] it was from the other side.
Raba inquired of R. Nahman: If a man writes a Get on a plate of gold and says to his wife, 'Receive herewith your Get and receive herewith your kethubah', what is the ruling? — He replied: Both her Get and her kethubah have been legally received by her. [Raba] thereupon raised an objection. [We have been taught,] If a man says, 'Receive herewith your Get and the rest can go to your kethubah', the Get has been legally received by her and the rest goes to the kethubah. Now the reason is that there is something over, but otherwise not? — No. The same rule applies even if there is nothing over, and what this [statement] teaches us is that even if there is something over, if he tells her [to take that in payment of her kethubah] she takes it, but if not, not. For what reason? — Because [in that case the rest] is [reckoned merely as] the margin of the Get.
Because he has to 'give' her the writ, and here there is no giving.
Because a gift which is made conditionally on its being returned is still counted a gift.
And in this case he makes it into several.
I.e., by long letters like the final nun, which obliterate the spaces between the lines.
And therefore it is no Get.
Who read it, and who could testify in case of falsification.
Who says that the witnesses to delivery make the Get effective.
Which Raba put to him.
Because he was speaking of the case where there were no witnesses to delivery.
And so could not be effaced.
Lit., 'those kept in folds', because they are liable to stray; hence their being found in a certain man's possession is not presumptive evidence that he is the owner, and the same applies to a slave, v. B.B. 36a.
Of such a nature where the transfer is a mere legal fiction designed to place the tablet in the temporary ownership of the husband to enable him to write the Get on it. Consequently the Get is not valid since it must be written on material belonging to the husband.
R. Judah b. Baba. V. 'Ed. II, 3.
[H] (Jer. XXXII, 10). which is taken to mean 'a document written by the transferor'. V. Kid. 26a.
And they returned them to him. So here we may say that even if the wife does not intend to leave the tablet in the husband's hands permanently, yet for the time being she has given it to him, and he can therefore 'give' it to her as a Get.

matches: v. v. V. v. V. V.


No person to whom has been sold a Migratory Bird Hunting and Conservation Stamp, validated as provided in section 718a of this title, shall loan or transfer such stamp to any person during the period of its validity; nor shall any person other than the person validating such stamp use it for any purpose during such period.
Except as provided in clauses (i) and (ii) of section 504(l)(D) 1 of title 18, no person shall alter, mutilate, imitate, or counterfeit any stamp authorized by this subchapter, or imitate or counterfeit any die, plate, or engraving therefor, or make, print, or knowingly use, sell, or have in his possession any such counterfeit, die, plate, or engraving.
of Migratory Bird Hunting and Conservation Stamps authorized by sections 718 to 718b, 718c, 718d, and 718f to 718h of this title, which otherwise satisfies the requirements of clauses (ii) and (iii) of section 504(1) of title 18. Any such reproduction shall be subject to those terms and conditions deemed necessary by the Secretary by regulation or otherwise and any proceeds received by the Federal Government as a result of such reproduction shall be paid, after deducting expenses for marketing, into the Migratory Bird Conservation Fund established under section 718d of this title.
2006-Pub. L. 109–266, §10(f)(1), inserted section catchline.
Subsec. (a). Pub. L. 109–266, §10(f)(1), inserted heading and substituted "Migratory Bird Hunting and Conservation Stamp" for "migratory-bird hunting stamp" in text.
Subsec. (b). Pub. L. 109–266, §10(f)(2), inserted heading and substituted "Except as provided in clauses (i) and (ii) of section 504(l)(D) of title 18, no person shall alter" for "Except as provided in clauses (i) and (ii) of section 504(1)(D) of title 18, no person shall alter" in text.
Subsec. (c). Pub. L. 109–266, §10(f)(3)(C)(ii), which directed substitution of "shall be paid, after deducting expenses for marketing, into the Migratory Bird Conservation Fund" for "shall be paid into the migratory bird conservation fund" in concluding provisions, was executed by making the substitution for "shall be paid, after deducting expenses for marketing, into the migratory bird conservation fund" to reflect the probable intent of Congress.
Pub. L. 109–266, §10(f)(3)(A), (B), (C)(i), inserted heading, substituted "Secretary may" for "Secretary of the Interior may" in introductory provisions, and substituted "Secretary" for "Secretary of the Interior" and "Migratory Bird Hunting and Conservation Stamps" for "migratory bird hunting stamps" in concluding provisions.
1988-Subsec. (c). Pub. L. 100–653 inserted ", after deducting expenses for marketing," after "paid".
1984-Subsec. (b). Pub. L. 98–369, §1077(b)(3), substituted "Except as provided in clauses (i) and (ii) of section 504(1)(D) of title 18, no person" for "No person".
Subsec. (c). Pub. L. 98–369, §1077(a), added subsec. (c).
1935-Act June 15, 1935, amended section generally.
Pub. L. 98–369, div. A, title X, §1077(c), July 18, 1984, 98 Stat. 1055 , provided that: "The amendments made by this section [amending this section and section 504 of Title 18, Crimes and Criminal Procedure] shall take effect on the date of the enactment of this Act [July 18, 1984]."
1 So in original. Probably should be "504(1)(D)".


text:
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALLAN JARANDILLA, Accused-Appellant.
"That on or about February 10, 1991, in the Municipality of Barotac Viejo, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a cal. .38 revolver (Squire Bingham) taking advantage of the nighttime, with intent to kill and with trachery (sic) and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Bonifacio Jalandoni inflicting upon the latter gunshot wounds on the vital parts of his body, thereby performing all the acts of execution which would have caused the death of Bonifacio Jalandoni as a consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to the said Bonifacio Jalandoni which prevented his death.
"That on or about February 10, 1991, in the Municipality of Btac. Viejo, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a cal. .38 revolver (Squire Bingham) taking advantage of the nighttime, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Nilo Prieto inflicting upon the latter gunshot wounds on the vital parts of his body, thereby performing all the acts of execution which would have caused the death of Nilo Prieto as a consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, by the timely and able medical attendance rendered to the said Nilo Prieto which prevented his death.
"From the foregoing, it has been established by evidence for the prosecution, as well as that of the defense, that in the evening of February 10, 1991, while a jeep driven by Nilo Prieto, with Peter Paul Aldeguer, Bonifacio Jalandoni and accused herein Allan Jarandilla, as passengers, was negotiating an uphill portion of the highway, from Ajuy Iloilo, going towards Barotac Viejo, Iloilo, several shots were fired from a gun, causing injuries to Peter Paul Aldeguer, which caused his untimely death, a wound at the nape of Nilo Prieto, and wounds on the chest and left wrist, of Bonifacio Jalandoni, which could have caused their deaths, were it not for timely medical attendance. The only passenger of the jeep, who was not injured, is, Accused herein, Allan Jarandilla. As a result of said incident, the money of Peter Paul Aldeguer, which was about P20,000.00 that he won at the cockfight, at Ajuy Iloilo was missing.
Nilo Prieto and Bonifacio Jalandoni, testified, under oath, and pinpointed, to the accused herein, Allan Jarandilla, as their assaillant (sic).
Although Nilo Prieto, before, and at the time, of the incident in question, did not know the name of that companion of Bonifacio Jalandoni who rode in his jeep in the evening of February 10, 1991, the said person was introduced to him, and to Peter Paul Aldeguer, as a policeman from Barotac Viejo, Iloilo.
Bonifacio Jalandoni informed the court, that he has known Allan Jarandilla, for a long time, because their respective wives where even together in selling textiles.
The contention of accused Allan Jarandilla, that he did not shoot the aforenamed victims and took the P20,000.00 from the pocket of Peter Paul Aldeguer, is negated by the testimonies of the victims who were able to live to ‘tell the tale’.
The actuation of the accused Allan Jarandilla, at the time of the incident, in question, tends to show that he intended to kill Nilo Prieto and Bonifacio Jalandoni, after he has already killed and robbed Peter Paul Aldeguer, in order to eliminate the witnesses to his criminal acts.
The allegations of accused Allan Jarandilla that he could not have possibly shot his victims, because he did not have any firearm at that time of the incident, as he has turned over his .38 caliber service revolver to PO3 Agsamosam, before he was transferred to 321st PC Coy, Sara, Iloilo, is not convincing to this court, because he was earlier seen, by Bonifacio Jalandoni and Nilo Prieto, as having a revolver tucked at his waist. Moreover, it is into farfetched, that even after Allan Jarandilla has turned over his .38 caliber service revolver to PO3 Agsamosam at Barotac Viejo, Iloilo, as a policeman, he could have easily secured another firearm, from other sources.
The allegations of Allan Jarandilla that he did not take the money from Peter Paul Aldeguer is likewise considered by the Court as not believable. The record will show that the accused Allan Jarandilla, went into hiding before he placed himself under the protective custody of the National Bureau of Investigation (NBI) on February 18, 1991 (Exh. 14’) so that it could have been very easy for him to hide the "loot", as well as the gun, which he used in shooting at the aforenamed victims.
3)	In Criminal Case No. 36071, Guilty, beyond reasonable doubt, of the crime of Robbery with Homicide, with Peter Paul Aldeguer, as his victim, and hereby Sentences him with reclusion perpetua, considering that at the time of the commission of the offense charged, the capital penalty, of death, has been abolished by the "Cory" Constitution, and not yet re-imposed by law. The afore-named accused is ordered to indemnify the heirs of the deceased, Peter Paul Aldeguer, in the amounts of P75,000,00, as actual damages, P500,000,00, as indemnity for his life; P500,000,00, as moral damages and P50,000,00, as attorney’s fees, and to pay the costs.
Accused, ALLAN JARANDILLA, shall be credited, in full, of the period during which he was detained, in connection with all the above-entitled cases.
The .38 caliber Squire & Bingham revolver, with Serial No. 659991, is hereby ordered to be returned to the PNP of Barotac Viejo, Iloilo, upon the signing by its representative of the corresponding receipt, therefor.
Appellant contends that his motive for committing the crimes was not established. He alleges that the presence of money on the body of Peter Paul Aldeguer, and the non-taking of any valuables from Nilo Prieto and Bonifacio Jalandoni rules out robbery. He also contends that he couldn’t have shot any of the victims, as he had turned over his service revolver much earlier than the date of the incident, and the NBI ballistics report on said revolver showed that the slugs taken from Aldeguer and Prieto’s jeep were not fired therefrom. It was a certain "Onik," appellant alleges, who later boarded the jeep and shot the victims. He also claims that it is not true that there was no eyewitness to corroborate his testimony and his claim that it A as this "Onik" who was responsible for the shootings.
For the State, the Office of the Solicitor General counters by invoking the settled rule that the prosecution need not prove motive on the part of appellant, as the latter had been positively identified as the author of the crime by Nilo Prieto and Bonifacio Jalandoni. The presence of money on the body of Peter Paul Aldeguer also does not negate the imputation of robbery, as prior to the shooting, Aldeguer was carrying more money than was found on his cadaver. The fact that appellant turned over his service firearm also does not preclude his chances of obtaining another one, which he used in the commission of the crimes charged. Lastly, the Solicitor General asserts that appellant’s imputation of the crime to one "Onik" is incredible, as there was no proof of the involvement, much less the existence, of such person on the night of the incident.
Based on the foregoing arguments of appellant and of the Solicitor General, we find that the basic issues here involve the credibility of witnesses, and the sufficiency of the evidence presented by the prosecution.
These assertions by appellant are not corroborated by any other witness. Jalandoni himself denies having a nephew by the name of "Unik" or "Onik." 17 None of the principal witnesses testified that there was a fifth passenger on board the jeep that they were riding that night, aside from Prieto, Jalandoni, Aldeguer and appellant. While defense witness Maria Bautista testified that she saw another person board the jeep in Culasi, she also stated that she saw appellant and two other persons inside the jeep at the time. 18 There was no fifth rider in the jeep, contrary to appellant’s averment.
Lastly, appellant reasons that he could not have shot the victims because he had returned his service revolver prior to the incident, and that the ballistics test showed that the slugs taken from Aldeguer’s cadaver and Prieto’s jeep were not fired from said revolver. However, the prosecution witnesses never stated that the .38 caliber revolver which they saw tucked in appellant’s waist on the night of the incident was his service revolver. They merely observed that there was such a weapon on appellant’s person. 24 Thus, the previous return of appellant’s service firearm to the PNP of Iloilo prior to the incident would not serve to exonerate him from culpability.
Both Prieto and Jalandoni testified that the shootings were carried out in a sudden and unexpected manner, without warning, with neither Prieto, Jalandoni nor the deceased Aldeguer expecting the attack. 29 Hence, the shooting of Prieto, Jalandoni and Aldeguer was attended by treachery. The attack being sudden and unexpected, they had no chance to defend themselves, particularly Prieto and Aldeguer, who were shot from behind as they sat at the front seat of the jeep. There was no warning, not even a declaration of a "holdup", as the gunman fired successive shots at his victims. Thus, the unexpected and sudden attack on the victims from behind rendered them unable and unprepared to defend themselves. Such suddenness was meant to ensure the safety of the gunman as well as the success of the attack. This clearly constituted alevosia. 30 This qualified the crimes committed by appellant to murder, although frustrated and attempted only insofar as Prieto and Jalandoni, respectively, were concerned. As for the aggravating circumstances of nighttime and evident premeditation alleged in the informations filed against appellant, we find no sufficient proof of the existence of these modifying circumstances.
Concerning Bonifacio Jalandoni’s injuries, appellant must be held liable for attempted murder only, for as pointed out by the examining physician, "he may or may not (have) succumb(ed)" to the gunshot wounds, indicating that said wounds alone could not have necessarily caused the death of Jalandoni. 32 A felony is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance, 33 such as the absence of lethal or mortal wounds.
In the case at bar, Nilo Prieto testified that he saw appellant search through the pockets of Peter Paul Aldeguer as he lay unconscious. Thereafter, police investigators found the sum of around P3,000.00 on Aldeguer’s body, a far cry from the P23,000.00 he had earlier won. From these established circumstances, there can be no other conclusion than that appellant robbed Aldeguer, who was shot to death on the occasion of the robbery.
As to the damages awarded, we find that the trial court erred in awarding the heirs of Peter Paul Aldeguer the amounts of P500,000.00 as death indemnity, P500,000.00 as moral damages, and P50,000.00 as attorney’s fees. Pursuant to current jurisprudence, these amounts awarded by the trial court must be lowered. The trial court also erred in the imposition of prison terms for appellant’s crimes against Nilo Prieto and Bonifacio Jalandoni. These must be adjusted accordingly, in line with the law on penalties.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
7.	Id.,. at 138-147; TSN, January 19, 1993, pp. 1-6.
11.	People v. Villamor, 284 SCRA 184,195 (1998).
12.	People v. Ballesteros, 285 SCRA 438,445 (1998).
13.	TSN, September 30, 1991, pp. 15-19; TSN, October 1, 1991, pp. 20-24.
14.	TSN, October 1, 1991, pp. 14, 27, 30, 38.
15.	People v. Nava, 306 SCRA 15, 22 (1999).
16.	TSN, February 10, 1992, pp. 11 - 18.
17.	TSN, November 24, 1992, p. 2.
18.	TSN, January 19, 1993, pp. 4-6.
19.	People v. Maglente, 306 SCRA 546, 575 (1999).
20.	People v. Guevarra, 306 SCRA 111, 125 (1999).
21.	People v. Andaya, 306 SCRA 202, 215 (1999).
22.	TSN, September 30, 1991, pp. 22-23; TSN, October 1, 1991, p. 20.
24.	Id. at 16; TSN, October 1, 1991, pp. 21-22.
26.	Id. at 5, 9-10.
27.	TSN, October 1, 1991, p. 4.
29.	TSN, September 30, 1991, p. 16; TSN, October 1, 1991, p. 21.
30.	People v. Borreros, 306 SCRA 680, 692 (1999).
31.	People v. De la Cruz, 291 SCRA 164, 186 (1998).
32.	TSN, October 1, 1991, p. 6.
33.	Article 6, Revised Penal Code.
34.	People of the Philippines v. Elmer Salas y David, GR. No. 115192, March 7, 2000, pp. 10-11.

matches: v. v. v. v. v. v. v. v. v. v.


text:
(augustioribus aedificiis adornarunt), Bd. 3, 19; S. 547, 24. III. the building of a house, ship, etc.:--Hé (the sixth day of the moon) is gód circan on tó timbrane, and eác scipes timber on tó anginnanne, Lchdm. iii. 178, 9. [O. L. Ger. timbar: O. Frs. timber: O. H. Ger. zimbar materia, fabrica, structura, aedificium: Ger. zimmer a chamber, timber: Icel. timbr. Cf. Goth. timreins a building, ga-timrjó a building.] v. an-, and-, boh-, bolt-, fugol-, fyrd- (?), heáh-, heofon-, hróf-, magu-timber; ge-timbru.
timber-geweorc, es; n. Timber-work, preparation or cutting of timber for building (?):--In bócholte timbergeweorc and widigunge in beechholt the right to get timber for building and to cut wood for fuel, Cod. Dip. B. i. 344, 12. v. timbran, III.
timber-hrycg, es; m. A wooded ridge (?); as a local name Timber&dash-uncertain;ridge:--On timberhricges snád, Cod. Dip. Kmbl. v. 71, 1. Ofer fild&dash-uncertain;burnan on timberhrycg, iii. 463, 31. Timberrycg, 393, 27.
timberness, tim-bor. v. ge-, on-timberness, tym-bor.
timbran, timbrian; p. ede, ode. I. to build (lit. or fig.), construct:--Ic timbrige struo, construo, Ælfc. Gr. 28, 5; Zup. 175, 11. Tóweorp hié, ne dú timbres (aedificabis) hié, Ps. Surt. 27, 5. Timbreþ Dryhten Sion, 101, 17: Ps. Th. 146, 2: Exon. Th. 450, 25; Dóm. 93. Gé timbriaþ (timbraþ, Rush.) wítegena byrgene, Mt. Kmbl. 23, 29: Lk. Skt. 11, 47, 48. Ic timbrode setl ðín, Ps. Spl. 88, 5. Ða gódan weorc ðe hé æ-acute;r timbrede, Past. 33; Swt. 215, 18. Hé burh timbrede, Cd. Th. 172, 6; Gen. 2840: Chr. 722; Erl. 44, 28. Timbrade, Ps. Th. 101, 14. Hié ceastra timbredon, Ors. 1, 10; Swt. 48, 10. Drehton ða hergas mid ðæ-acute;m æscum ðe hié æ-acute;r timbredon. Ðá hét Alfréd cyng timbran langscipu ongén ða æscas, Chr. 897; Erl. 95, 7-11. Æfter ðæm hryre ðære upáhæfennesse hé ongan timbran eáðmósnes?e, Past. 58; Swt. 443, 30. Wé ceorfaþ treówu on holte, ðæt wé hí eft up áræ-acute;ren on ðæm botle, ðæ-acute;r ðæ-acute;r wé timbran willen, Swt. 445, 1: Cd. Th. 64, 29; Gen. 1057. Weall stæ-acute;nenne timbran, 101, 34; Gen. 1692. On ðám telgum timbran nest, Exon. Th. 210, 20; Ph. 188. Ne mæg fira nán wísdóm timbran (timbrian, Bt. 12; Fox 36, 11, 8, 10), áæ-acute;r ðæ-acute;r woruldgítsung beorg ofer&dash-uncertain;bræ-acute;deþ, Met. 7, 12. Uton timbrian ús ceastre faciamus nobis civitatem, Gen. 11, 4: Ps. Th. 128, 2. Ecgbryht salde Reculf mynster on tó tymbranne (-ianne, MS. E.), Chr. 669; Erl. 34, 26. Timbriende aedificans, Ps. Surt. 146, 2. Timbrende aedificantes, 117, 22. Ðæ-acute;r wæs timbred templ, Nar. 37, 22: Beo. Th. 620; B. 307. Bióþ timbrede cestre, Ps. Surt. 68, 36. II. to instruct, edify:--Hé nówiht elles dyde ðonne ðæt folc mid godcundre láre timbrede nil aliud ageret quam plebem Christi verbo salutis instruere, Bd. 2, 14; S. 518, 10. III. to cut timber (?). v. timber-geweorc, and cf. wudian:--Me mæig on sumera . . . bytlian . . . tymbrian, wudian, Anglia ix. 261, 11. [Letten þa kinges timbrien þa hallen, Laym. 5940. To timbren me mine crune, A. R. 124, 8. To timmbrenn himm an hus, Orm. 13368. Who tau&yogh;te hem (peacocks) on trees to tymbre so heighe, Piers P. 11, 352. Goth. timrjan: O. Sax. ge-timbrón (-ian): O. L. Ger. ge-timbran: O. Frs. timbra, timmera: Du. timmeren: O. H. Ger. zimbaren, zimbarón aedificare, struere, instruere: Ger. zimmern: Icel. timbra: Dan. tømre.] v. á-, be-, for-, ge-, in-, on-timbran (-ian), and next word.
timbrend, es; m. f. A builder, constructor:--Se wæs timbrend (constructor) ðæs mynstres ðe gecweden is Médeshámstyde, Bd. 4, 6; S. 573, 40. Heó wæs seó æ-acute;ryste tymbrend ðæs mynstres ðe ys nemned Steórneshealh, Shrn. 148, 39.
timbrung, e; f. Building, a building:--Ealdere timbrunga bóte instructio, níwe timbrung constructio, Wrt. Voc. i. 39, 58, 59. Timbrunga domum exstructam, Kent. Gl. 472. [Bileafden heo (the builders of the tower of Babel) heore timbrunge, O. E. Homl. i. 93, 23. Timbringe, 227, 4. Al is to his behefe and timbrunge toward his blisse, A. R. 124, 1.] v. ge-timbrung.
-tíme (v. teám, I, tíman, I, and cf. -bæ-acute;re). v. luf-, þweorh-tíme; wróht-getíme.
-tíme (v. teám, II). v. feoþer-, ge-tíme (-týme).
tíme (v. tíma), v. un-tíme.
tímen (?); adj. Belonging to a team. v. teám, II:-- Témen bibina ( = bis bina?), Wrt. Voc. ii. 126, 8.
tímlíce; adv. In good time, soon:--Ðú bæ-acute;de mé foroft Engliscra gewritena and ic ðé ne getíðode ealles swá tímlíce æ-acute;r ðam ðe ðú mid geweorcum ðæs gewilnodest æt mé you very often asked me for English writings, but I did not grant your request so very soon, not before you desired it from me with works, Ælfc. T. Grn. 1, 16. [Ic mei longe libben and alle mine sunne timliche ibeten repent of all my sins time enough, O. E. Homl. i. 25, 13. Ase timliche as he hefde iherd þis (sone so he iherde þis, other MS.), Jul. 9, 5. He wolde timliche him speken wið, Laym. 31369. Bute &yogh;ef þu þe timluker (nisi maturius) ure godes grete, Kath. 2086. Icel. tímaliga timely, early.] Cf. tídlíce.
timple, an; f. Some implement used in weaving:--Hé sceal habban fela tówtóla . . . flexlínan, spinle . . . presse, pihten, timplean, wifte, Anglia ix. 263, 12.
tin a beam. v. tinn.
Tína(-e ?), an the river Tyne:--Be Tínan ðære eá juxta amnem Tinam, Bd. 5, 21; S. 642, 36: Chr. 875; Erl. 76, 35.
tín-ámbre; adj. Containing ten 'ámbras':--Genim týnámberne cetel, Lchdm. ii. 86, 12.
tínan; p. de To vex, annoy, irritate, provoke:--Se wellwillenda man wyle forberan gif hine man áhwæ-acute;r týnþ, oððe him tale gecwyð, Basil admn. 4; Norm. 44, 18. Ðá ðá se án (sunu) ðé týnde (cf. tirigde, l. 9), Homl. Th. ii. 30, 12. Hí yrsodon &l-bar; týndon Moyses irritaverunt Moysen, Ps. Spl. 105, 16, 8: Blickl. Gl.: Cd. Th. 153, 24; Gen. 2543. Ne týn ðu ðíne neáhgebúras non memor eris injuriae civium tuorum, Lev. 19, 18. Ne æ-acute;nig man óðerne ne tyrie ne ne týne ealles tó swýðe, Wulfst. 70, 9. Ne áblinnan wé, ðæt wé Gode cwémon and deófol týnan, Blickl. Homl. 47, 11. Ðæt hí ælþeódige men ne tyrian ne ne týnan, L. Eth. vi. 48; Th. i. 326, 28: Wulfst. 309, 5. Gebiddaþ for eówerum ehterum and eów týnendum orate pro persequentibus et calumniantibus vos (Mt. 5, 44), Homl. Th. ii. 216, 17. v. teónian.
tind, es; m. A tine, prong, tooth of an implement:--Tindas rostri, tindum rostris, Wrt. Voc. ii. 119, 30, 28. Ðeáh ánra gehwylc horn hæbbe .xii. tindas írene, and ánra gehwylc tind hæbbe synderlíce .xii. ordas, Salm. Kmbl. p. 150, 25. [Tindes the rungs of a ladder, A. R. 354, 20. Tynde branch of a tree, Allit. Pms. 3, 78. Tindes of harowis, Alex. 3908. A tynde cremale (a hook); a tynde of a beste, Cath. Angl. 389 (where see several instances). Tyynde, prekyl, tynde, pryke carnica; tyndyt with tyndys carnicatus, Prompt. Parv. 494. Cf. tine stocks, the short crooked handles on the pole of a scythe, Halliw. Dict. M. H. Ger. zint a spike, tooth: Icel. tindr a spike; also, a peak.] v. following words.
tindig; adj. Having spikes or prones:--Óstig gyrd vel tindig scorpio (scorpio genus flagelli, ex virgis nodosis confecti, vel scutica in modum scorpionis aculeata, Migne), Wrt. Voc. i. 20, 17. v. next word.

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The aim of this article is to better understand the conditions outlined in the CILFIT judgment and their role in creating a meaningful dialogue about European Union law. For these purposes two distinct views on the relation between language and meaning are utilised, as has been argued for by Ludwig Wittgenstein in his Philosophical Investigations. In the CILFIT judgment both of these views surface, which imply different challenges to the participants of the EU dialogue. In the conclusion, we suggest how these challenges can be met in order to facilitate a mutually meaningful dialogue about EU law.
This article aspires to show how a judicial dialogue about EU law can function as a model for European legal integration7 and cooperation. In order to achieve legal integration and cooperation, the participants (primarily national courts and the CJEU) should be able to continue what is called a mutually meaningful conversation about EU law. This means the participants should be able to work well together across their different national legal cultures and, at the same time, express a shared understanding of EU law. This article focuses on the difficulties that the participants at a micro-level face when they participate in what should be a mutually meaningful conversation about EU law. For this the preliminary reference procedure and one example of this procedure in particular is examined: the CILFIT judgment.8 This procedure has proven to be a highly valuable procedure for the process of European legal integration and cooperation. Furthermore, it is both a paradigmatic and concrete example of judicial dialogue.
From the later language philosophy of Ludwig Wittgenstein, his Philosophical Investigations,9 we borrow the idea that ‘meaning’ and ‘language’ are intimately interwoven. This idea is used to critically read a particular section of the CILFIT judgment. Thus, this article is not about Wittgenstein’s philosophy, but aims to demonstrate what view on language and meaning underlies the CILFIT judgment with help of Wittgenstein’s understanding of language and meaning.10 The CILFIT judgment is a landmark case that is most known for its instructions on when courts of last instance may refrain from making a preliminary reference to the CJEU. In the context of these clarifications, the CJEU drew attention to the ‘particular difficulties’ involved in interpreting EU law. This is set out in paragraphs 13–16 of the judgment. However, paragraphs 18–20 of the judgment are more interesting, for it is here that the CJEU spells out the conditions under which a judicial dialogue about EU law is to be conducted between national courts and the CJEU. By using Wittgenstein’s view on language and meaning we will show what national courts, and jurists working at the CJEU, should do in order to meet the conditions set out in CILFIT and how difficult this is for them.
In the next section a brief introduction of the preliminary reference procedure is given. Section 3 zooms in on the CILFIT judgment, a part of which will continue to be read closely with use of Wittgenstein’s philosophy in section 4. The final section concludes with a suggestion of what participants of a judicial dialogue on EU law can do to continue a mutually meaningful dialogue about EU law.
There are several reasons why this article focuses on the CILFIT case, which was decided in 1982. First, the Court still regularly refers to its judgment in CILFIT.18 Secondly, although the Court still refers to CILFIT, there are inconsistencies in the CJEU’s own references to the CILFIT criteria. For instance, the CJEU sometimes omits the reference to the comparison of the language versions and just mentions the ‘specific characteristics of EU law’ and the ‘particular difficulties’ to which the interpretation of EU law gives rise,19 but at other times it refers to the language comparison it prescribed in CILFIT.20 The existence of these inconsistencies calls for an attempt to clarify the meaning of the CILFIT judgment.
Furthermore, in 2003 the CJEU clarified that the failure to refer preliminary questions may lead to Member State liability for breach of EU law.23 Moreover, as a fifth and final point, there is another recently developed line of case law according to which an insufficiently motivated refusal to refer preliminary questions may constitute a breach of Article 6 of the European Convention on Human Rights.24 Since the CILFIT criteria govern the national courts of last instance’s legitimate reasons to refrain from referring, these last developments also merit a new and closer look at the CILFIT judgment.
There are also authors, notably (former) magistrates of the CJEU, who argue for a nuanced reading of CILFIT, and for its continued relevance. For instance, while former CJEU Judge David Edward conceded that ‘the Court’s phraseology is not ideal’, he argued that paragraphs 18–20 of CILFIT must not be read with ‘absurd literalism’. In his opinion, CILFIT paragraphs 18–20 must not even be read as a confirmation of an acte clair doctrine, but rather as a series of caveats, that are ‘no more than common sense’, for when a court may consider whether there is ‘scope for any reasonable doubt as to the manner in which the question raised is to be resolved’.28 It is argued in section IV that there is more to say about the paragraphs 18–20 than Edward suggests.
In CILFIT the so-called Da Costa doctrine is further developed. That is, the doctrine according to which national courts of last instance do not have the obligation to refer preliminary questions in those cases in which the question raised is materially identical with a question that the CJEU has already answered.29 However, the Da Costa doctrine was subsequently applied rather liberally by the national courts, leading to such a wide interpretation of existing case law of the Court of Justice that it even resulted in non-compliance.30 The CILFIT case presented an opportunity for the Court of Justice to pronounce itself on the application of the preliminary reference procedure, and – arguably – to regain some control over the national courts’ practice in referring questions.
The case concerned a preliminary reference from the Italian Supreme Court of Cassation in a procedure between CILFIT Srl and 54 other textile firms, and the Italian Ministry of Health. CILFIT and the others were levied contributions towards the carrying out of health inspections for the import of wool under the Italian law. These companies challenged parts of the levy, arguing that the levy violated EU law. Specifically, the companies argued that a specific Regulation on the common organisation of the market in, among others, ‘animal products’ as mentioned in an Annex to the EEC Treaty was violated. However, the Ministry of Health’s counterargument was that ‘wool’ was not mentioned in that Annex, and therefore it did not fall within the scope of application of the Regulation. Moreover, the Ministry argued that the wording of the Annex was so unequivocal, that there was no need to refer a preliminary question to the CJEU.
The next section includes an overview of the central facts and question of the CILFIT case. Then, section IV turns to the core of this article and explores the conditions for a meaningful judicial dialogue.
In response to the question raised by the Italian Supreme Court of Cassation, the CJEU’s judgment seems to provide a quite comprehensive answer. As mentioned, the question concerned the conditions under which national highest courts may refrain from raising a question on the interpretation of EU law.32 These conditions are spelled out in paragraphs 13 through 16 of the judgment. According to the Court in paragraph 13, national courts are under no obligation to raise a question that concerns a matter already answered by the Court in a similar case: ‘the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case’.33 The Court thereby confirmed its earlier judgment in Da Costa.
These paragraphs of the CILFIT judgment have received the most attention since its publication.37 Based on paragraphs 13–16 it can be seen that the Court has made an effort to indeed answer the preliminary question. The Court’s answer leaves some discretion to the national courts in the matter of EU law interpretation, and hereby the Court sides with the positions of the Italian government, Denmark and the Commission, and opposes the position of the plaintiffs.
However, there is more to say about this judgment and this is of fundamental importance to the way in which, according to the CJEU, a dialogue on EU law is to be conducted. Where the preliminary question raised in CILFIT concerned the room for discretion by national courts, the CJEU also spelled out the ‘particular difficulties’ that national courts have to deal with when interpreting EU law, that is, when they can conclude that there is an acte clair. In paragraph 17 the Court says: ‘However, the existence of such a possibility [i.e., whether there is a reasonable doubt in the interpretation of EU law] must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise’. These difficulties are formulated in paragraphs 18–20 to which we will now turn.
Rather than all too easily dismissing the wording of CILFIT, like David Edward who called these paragraphs mere caveats,38 it is – despite the obvious practical unfeasibility of conducting a linguistic comparison of 24 languages – valuable to take the Court’s wording seriously, and ‘unpack’ what is said.
Moreover, if Edward’s qualification is accepted, that CILFIT merely contains caveats which warn national judges that they should not think too lightly about declaring the meaning of and EU law term ‘beyond a reasonable doubt’, then the question remains: how should the meaning of EU law terms be determined? This question must be answered given the peculiarity of EU law – which EU jurists need to navigate – that it is not merely the sum, average or common denominator of the legal systems of its Member States, rather, it is ‘autonomous’.39 However, at the same time, EU law is supposed to be building upon, and be respectful of, the national legal cultures and constitutional traditions of its Member States of which it is, due to the doctrines of primacy and direct effect of EU law, an important part. This complicates legal ‘meaning-making’ in EU law. Moreover, the jurist who determines this meaning is necessarily someone who comes from one of the Member States and has originally received their legal education in a national setting. Just as there is no common language that is detached from all other EU languages, there is no breed of pure EU jurists, untainted by the influence of any domestic culture or legal system.
The reason why Wittgenstein’s Philosophical Investigations is so illuminating for these purposes is that by reading the first sections we are introduced to two different views on language and meaning: one superficial view of language as a set of words and grammar, which is separated from meaning; and one complex view on language as a cultural practice, which is intimately interwoven with particular meaning. The latter view is the one that Wittgenstein further develops in terms of ‘rule-following’ and ‘form of life,’ but we will not go into this here. The point here is to illustrate the difference between language as something superficial and disconnected from our understanding of the world, and language as something complex, a social practice or culture, that is closely related to how we understand our world.
What is more, a close reading of these first sections of the Investigations is itself exemplary of the way in which we will read the paragraphs 18–20 of the CILFIT judgment. That is, by reading these paragraphs we will ask ourselves what relation between (legal) language and (legal) meaning is suggested by the CJEU. This is what is meant when we say, as we did in the introduction, that we make use of the perspective of language philosophy.
This excerpt describes how a child learns a language from his parents. Language acquisition involves the repeated utterance of words by the parents in combination with their pointing to particular objects and, in response to this, the efforts of the child to copy his parents’ behaviour, including the attempts to (correctly) pronounce words. The result of this is, supposedly, that the child has not only learned to speak a language (‘I have trained my mouth to form these signs’), the child has also learned to understand the world (‘I used them to express my own desires’).
These words [i.e. in Augustine’s excerpt], it seems to me [Wittgenstein], give us a particular picture of the essence of human language. It is this: the individual words in language name objects – sentences are combinations of such names. – In this picture of language we find the roots of the following idea: Every word has a meaning. This meaning is correlated with the word. It is the object for which the word stands.
I send someone shopping. I give him a slip marked ‘five red apples’. He takes the slip to the shopkeeper, who opens the drawer marked ‘apples’; then he looks up the word ‘red’ in a table and finds a colour sample opposite it; then he says the series of cardinal numbers – I assume that he knows them by heart – up to the word ‘five’ and for each number he takes an apple of the same colour as the sample out of the drawer.
It follows from the above description of language and meaning that the words ‘five red apples’ stand for a particular amount (five) of a particular object (red apples). Knowing these three words and what they stand for should enable the shopkeeper to understand what is on the shop list and hence, be able to respond to the buyer accordingly. However, we see that the shopkeeper needs to know and do more than what is captured in the three words and the object (red apples). We see that the shopkeeper needs to open a drawer with apples (not with pears) and pick the red ones (not the green) and then count to five (not four or six) in order to deliver what is on the shopping list.
Following this philosophy, the too simplistic idea that words represent the meaning of objects should be ignored, not because it is complete nonsense (which it is not) but because it prevents us from seeing the intimate relationship between our use of language and our understanding of the world. In Wittgenstein’s terms ‘the speaking of language is part of an activity, or of a form of life’.50 This sentence captures Wittgenstein’s own view on language and meaning.
With this new view, we can return to the story about the shopkeeper. It could be said that going shopping with a shopping list is part of a form of life and thus enables the shopkeeper, who is part of this form of life, to deliver the requested number of red apples. The words (‘three red apples) or the objects (the actual red apples) are not sufficient, rather it is the cultural practice in which the shopkeeper and the buyer are embedded which allows for meaningful interaction (i.e., in this case: buying and selling fruits).
Thus, it is concluded that the second more intelligible view on language and meaning is that language is more than a set of words and grammar. Language is a culturally embedded practice, which includes the use of words (of course) but also particular (inter)actions. For instance, when we were to sell fruits we would know what to say to our customers, where to look for the fruits, how to count and deliver them correctly, and so on. This complex idea of language is directly related to a relatively complex idea of meaning (understanding). When we use our culturally embedded practice of language we, thereby, exhibit what Wittgenstein calls ‘a form of life’ or in our term ‘cultural practice’.
The following example illustrates the difference between the two above outlined views on language and meaning. Imagine someone tells you about the Dutch national feast called King’s Day (Koningsdag). He tells you that on King’s Day Dutch people dress in orange clothes and there are parties with music everywhere. Following the first simplistic view on language and meaning, the previous sentence stands for something like the following image: people wearing orange clothes while music is played. The second view on language and meaning would imply a cultural practice underlying this image. And, of course, for a Dutch person King’s Day means usually much more than the image of people dressed in orange and music suggests. However, to communicate this complex cultural practice requires more than words alone can describe.
To understand King’s Day, as the Dutch do, requires, besides proficient competency in language in the simplistic sense (i.e., knowledge of words and grammar), a competency in the Dutch cultural practice of King’s Day. This means knowledge of what Dutch people usually do on this day, how they interact and with whom, and where they go and when, and so on. It means knowledge, for instance, of how Dutch people, young and old, celebrate the birthday of the King, which is certainly not the same as celebrating an ordinary Dutch birthday (with family, coffee, and cake). King’s Day is the public birthday of the King but there is no need to bring the King a gift, for instance, or to congratulate him in person. Rather, one could go out early in the morning to look for cheap housewares in one of the many flea markets. One could go also with friends to one of the many live music events or dance parties, some of them starting the night before King’s Day and continuing until the following afternoon.
The Dutch participate in a wide variety of activities on King’s Day. But, how one should behave and interact, what is expected of you to say and do (and what not), is part of the Dutch culturally embedded language practice that constitutes our particular understanding of King’s Day. This understanding cannot fully be described here, not because we do not know the words, but because it is too complex to describe in words. This complexity is characteristic of the second view on language and meaning identified here, that is, language as a cultural practice, the use of which is intimately related to the expression of particular meaning or a particular understanding of the world.
To begin with, it must be borne in mind that community legislation [i.e., EU law] is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of community law thus involves a comparison of the different language versions.
Paragraph 18 begins with a reminder by the Court that all languages used by Member States of the European Union allow for equally authentic versions of EU law. This means there are (currently) 24 different official languages versions of EU law. The second and final sentence of this paragraph tells us that the meaning of EU law follows from comparing these language versions with each other.
Our question is which view on the relationship between language and meaning is underlying paragraph 18. To say that different languages (French, German, Polish, Dutch, and so on) allow for an equally authentic interpretation of EU law seems to imply two things. First, language (in ‘language versions’) is seen as a tool rather than a culturally embedded practice or form of life. Apparently, there are different languages, different sets of words and grammar, which (presumably) express the same meaning of EU law. This suggests there is no real intimate relationship between the language that is used and the particular meaning that is hereby manifested, as would follow from the second more complex view on this relation. Were there such an intimate relationship, the use of, for instance, German legal language would show the German legal culture rather than a European legal culture. But how could different language versions of EU law be equally authentic if there was one that resembles the German legal culture, and one that resembles the Dutch legal culture, and so on? The presumption underlying the ‘equal authenticity’ of the different language versions of EU law is that these versions, although different in terms of words and grammar, stand for something that is more or less the same. Hence, there seems to be no intimate connection between the national languages in which EU law is interpreted and the meaning of EU law.
Second, the separation of language and meaning suggests that the meaning of EU law is relatively superficial. As we demonstrated above, the complexity of a culturally embedded practice cannot be captured in words alone. If the national languages function as mere tools for the interpretation of EU law then this interpretation will be rather poor: it would lack social embeddedness or cultural practice. We will come back to this point.
Thus, at first sight, a simplistic view on the relationship between language and meaning seems to underlie the conditions for a European judicial dialogue set out in paragraph 18 of the CILFIT judgment, and this implies a relatively superficial understanding of EU law.
The second sentence of paragraph 18 is less clear from a language philosophical perspective. The sentence states that a comparison of language versions is needed for the interpretation of EU law. The question is at what level should this comparison take place. Is it a comparison at the level of words and legal terms? For example, where the French word for ‘contract’ is used in the French version of EU law, the Spanish word for ‘contract’ should be used in the Spanish version, and so on. Or should we think of a comparison at the level of language as a culturally embedded practice? This would mean that, for instance, the Dutch culturally embedded legal language practice would be compared with the German culturally embedded legal language practice, and so on.
Good faith 1 common law the quality or state of mind of a person subsisting in honesty, sincerity, decency, fairness and reasonableness without intent to cheat or defraud or take unfair advantage of another (BLD) (subjektivní) dobrá víra subjektivní přesvědčení osoby, že jedná v souladu s právem a že svým jednáním nikomu nepůsobí újmy (TOM); mutual duties of ≈ vzájemná povinnost jednat v dobré víře; to donate st. in ≈ darovat v dobré víře; to make a ≈ determination učinit rozhodnutí v dobré víře; ….
This dictionary excerpt shows a rather detailed comparison of the meaning of ‘good faith’, as it is (supposedly) used in the English common law language and in the Czech civil law language. It does not show, however, that the term ‘good faith’ originally stems from German civil law (Treu und Glauben). For example, Article 242 of the German Civil Code provides: ‘Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Trau und Glauben mit Rücksicht auf die Verkehrssitte es erfordern’.
Turning to legal practice for a moment, it is interesting to note that the CJEU does use lawyer-linguists to translate between the different national languages of Member States. These translators are lawyers by training and proficient in several European languages. They are called upon to use their own cultural and legal knowledge to reach an optimal translation.54 However, the Court also relies to an increasing extent on translation software in the initial stages of translation.55 This software resembles the function of a legal dictionary and misses the culturally embedded legal knowledge that lawyer-linguists have.
Returning to our analysis, we could alternatively think that the CJEU wants national courts to compare languages at the more complex level of language practice. This implies, however, comparing meaning at a complex level too. Think of comparing something like the Dutch King’s Day with the French celebration of Bastille Day. Besides the fact that both are national holidays there are many differences between them. Husa’s research suggests we can expect a similar conclusion when comparing different culturally embedded legal language practices with each other.
To conclude the reading of this paragraph, we find that the CJEU is not clear about what the comparison of language versions should lead to: the identification of differences or similarities, and what to do when we find differences rather than similarities? Which difference is to determine the meaning of EU law? Is, for instance, the French legal cultural practice to dominate the interpretation of EU law?
It must also be born in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and the law of the various Member States.
Here, according to the CJEU, there are occasions in which different language versions ‘are in accord with one another’. Again, it is unclear which view on language and meaning is underlying here. We have seen that a specialised legal dictionary could provide for an accordance at the superficial level of language, an accordance of legal terms, but this is problematic when it comes to legal meaning. Comparing legal terms, even in detail, may lead to a poor comparison of legal meaning. For example, although ‘good faith’ is a valid English term, there is no common law practice that supports all of the particularities that would follow from the culturally embedded language practice of its origin in German civil law.
Alternatively, we could take the Court to mean there is or can be ‘an accord’ at the level of culturally embedded language practices. For instance, we could try to imagine the English understanding of contract law being in accordance with the French understanding of contract law. Although it is hard to imagine this,56 it does not rule out the possibility of accordance between the 28 Member States on some legal issue, at the level of their national cultural language practices.
As we continue reading the first sentence of paragraph 19 we can clearly see that the CJEU holds a simplistic view on the relationship between language and meaning. The Court tells us that there is ‘terminology which is peculiar to it [i.e., EU law].’ This means the Court adds terminology to the languages that are to be used for the interpretation of EU law. The suggestion that follows from this is that with the introduction of particular terminology or words, the meaning of EU law is better expressed than without this terminology.
National courts, thus, are to use their own national languages, which presumably work as a tool to express EU law and not as a culturally embedded national legal language practice (as pointed out above), and where these languages run short, national courts should make use of particular terminology that is specifically designed to fit the meaning of EU law. In other words, the idea seems to be that judges understand EU law best when they use the right terms and not their culturally embedded national legal language practices.
So far, the impression is that the CJEU ignores the intimate relationship between the use of national languages and the particular culturally embedded understanding of law that is tied to this use. The presumption is that national courts are not overly hindered by their own culturally embedded legal language practices when they interpret EU law. We conclude that a superficial understanding of language as a system of words (or terms) and a related simplistic understanding of the relationship between language and meaning seems to be prevalent, although this is not entirely clear. It could be that the Court thinks that comparison of legal languages at the deep cultural level is possible and that at this same level an alignment exists between the Member States. The CJEU’s introduction of terminology particular to EU law seems, however, to support our conclusion.
Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.
This is perhaps the most important paragraph. In paragraph 20 the Court seems to allude to something bigger than merely the words in which EU law is phrased. First of all, there is, or should be, a particular context in which EU law is interpreted, that is, in the context of the European Union and thus not of one or more Member State(s). This context gives particular meaning to the provisions of EU law, that is, these provisions do not just mean whatever the words at a superficial level mean (dictionary meaning) but these words must be interpreted within the context of the European Union. Second, EU law provisions do not and should not be taken to stand by themselves. They are embedded within a framework of EU legislation. Third, there are certain objectives of the European Union that should be brought out with use of EU law. This framework and objectives allow for a more complex and particular understanding of EU law than would follow from the language of the provisions alone. Finally, to this understanding a perspective of evolution is added, namely the evolution of the European Union.
With the acknowledgment of a particular European context, legal framework, objectives, and perspective, the Court outlines the contours of what we could call a European form of life. This gives the provisions of EU law their rich and complex understanding; contrary to our earlier suggestion that EU law remains superficial. Compare this with the understanding of the shopkeeper of the words ‘three red apples’. These words derive their particular meaning not just from what these words stand for but from the context in which they are used (the shop). The meaning is further developed with the aim of achieving a particular objective, buying and selling fruits. Hence, taking paragraphs 18–20 together, we conclude that ultimately the CJEU holds a complex and intimate relationship between language and legal meaning. Where national courts must ignore their culturally embedded knowledge of national law, they must use their national languages to create a European legal culture, that is, they must interpret EU provisions in the light of a European legal context with acknowledgment of a framework of provisions, the objectives of the European Union, and its current state and evolution. This article has focussed so far on the requirements for national courts but these conditions apply to all participants of the European judicial dialogue. The CJEU, for instance, needs to use French language, not to express (instances of) the French legal culture, but to constitute a European one.
V. How to Create a European Legal Culture Out of Different Language Practices?
We used language philosophy for a close reading of paragraphs 18–20 of the CILFIT judgment. Our conclusion is that under the reasoning of the Court in these paragraphs lies a simplistic idea of language that functions as a mere vehicle that allows for relatively superficial legal meaning only. The participants of the European judicial dialogue are to use their respective national languages as transparent tools; they have to suppress their culturally embedded knowledge of national law when they interpret EU law. As observed, paragraph 20 has the potential to counter our ‘verdict’ of the Court’s language philosophy as too simplistic, since it ties the superficial use of national languages to a European ‘context’ and to the ‘objectives’ of the system of EU law and to its ‘state of evolution.’ Paragraph 20 introduced the contours of what we can call a European legal practice.
So, if paragraphs 18–20 in CILFIT are to be taken seriously, what the CJEU seems to require of national courts is that they adopt a simplistic view of their own national legal language and culture, but a rich, complex understanding of European law. This requirement seems inconsistent in light of the idea of a European judicial dialogue that is supposedly characterised by equal conversation partners who trust and respect each other. The requirements allow for little respect of national legal cultures and imply something like a European legal cultural hegemony.
From a language philosophical perspective, the requirement of the Court is inconsistent and, more importantly, highly problematic. It is inconsistent because the Court deploys in paragraphs 18–20 two different views on language and meaning at the same time. And it is problematic because the requirement of national courts to ignore their embedded understanding of national law makes no sense. This embedded understanding constitutes their legal form of life, which means it constitutes how they understand law, not just what law is or what a legal term stands for. In other words, this embedded understanding shines through everything judges say and do in law, that is, in national law but also in EU law. This means it is impossible to meet the conditions spelled out in paragraphs 18–19, which require judges to leave out their embedded national legal understanding. Furthermore, the requirement in paragraph 20 that says that national courts are to create a European legal culture with use of national languages – as transparent tools – raises the question how this can be done.
If, nevertheless, the CILFIT conditions should be continued to be taken seriously, there must be a new way forward. More particularly, if paragraphs 18–20 of CILFIT are read not just as instructions to national courts of last instance, but what is called in the introduction a ‘micro-level’, that is, as a job-description for jurists working at the CJEU, the matter of how to go on acquires new depth. As noted, these jurists all come from one of the Member States, where they have usually also enjoyed their primary legal education. In their work at the CJEU, for instance when they draft judgments in preliminary reference procedures, they will have to perform this ‘particularity’ of EU law: working in French while they may not be a French native speaker, reasoning about the correct interpretation of EU law, and all the while coming to terms with, – and, if necessary, keeping a distance from – their national legal cultural background.
Two options come up. First, the option that national courts (or CJEU jurists, for that matter) abandon their national legal cultures altogether in favour of an isolated European legal culture. This option must be rejected immediately because it is not possible from a language philosophical perspective and it is also not desirable in light of the ideals of the European Union, for example, integration and cooperation between Member States. The second option is that one Member State provides for a dominant interpretation of European law. This means that the courts of the other Member States should learn this first Member States’ national legal culture. Although it is perhaps more or less possible to adopt a new legal culture, besides one’s own, this option is in tension with the idea of a dialogue between equal conversation partners – and with the idea of the autonomy of EU law – and must, therefore, also be rejected.
Following the language philosophical insights, the best way forward begins with the recognition that when we use our languages meaningfully as a culturally embedded practice, this is intimately related to the particular way we do things in life. For example, when most Dutch people celebrate King’s Day and when we interpret and apply law. Then, contrary to what was read in paragraphs 18–19, national courts should be allowed to rely upon their respective legal forms of life when they use their national legal languages in interpreting EU law. As mentioned, it makes no sense to ignore one’s embeddedness in legal culture entirely. The acknowledgement of national legal cultures is, thus, necessary from a language philosophical point of view but it is also a first step in making the European judicial dialogue really meaningful to national courts.
With this altered reading of paragraphs 18–19 we can return to the final condition for a meaningful European judicial dialogue as outlined in paragraph 20 and rephrase it as follows: a European legal culture should be created on the basis of different national legal cultures or embedded language practices (and not on languages in a superficial sense). The question is how this can be done.
This question formulates the challenge that national courts, the CJEU and other EU institutions face when interpreting EU law following the reformulated conditions for a meaningful judicial dialogue. The answer is, however, not to have all participants of a European judicial dialogue use the same language in a simplistic sense, for instance something called ‘Esperanto’.
The challenge is to continue a judicial dialogue meaningfully across different national legal cultures with use of different national languages (for example, following the altered conditions in paragraphs 18–19). This requires a solution at the complex level of language practices, not at the superficial level of languages as transparent tools. The real challenge is to respond well to the embedded legal cultural differences.
In natural conversations, outside of law, there are many ways in which one can carry on, for instance by asking to learn more or changing the subject if it all becomes too complicated. It is different when it comes to European law. The judicial dialogue in a procedure – like the preliminary reference procedure – has a strict order and there is little room for further questions.
The participants of this dialogue should, first of all, recognise their respective embedded understanding of law as is manifested in their respective national legal language practices. This is perhaps not the most difficult step since as argued, following philosophy of language, that it is almost impossible to deny one’s cultural embeddedness in language. However, it is not just important to recognise but also to be aware of one’s particular embeddedness or understanding. This is not always easy.
This last observation is important. In the actual conversation or exchange of arguments one’s particular understanding is brought out or becomes visible. It is therefore important that there is an actual exchange of arguments and the final judgment should adequately reflect this exchange. What is more, an actual exchange of thoughts between judges of national courts, the parties from various Member States and EU institutions, has the double function of helping them understand what is particular about their legal cultures, but also teaching them what is particular, and therefore different about the legal culture of the other(s). It is important to make this process visible, to disclose it, for this is where a real meaningful, as opposed to superficial, dialogue can begin. In this regard, a recent change has been observed in the Court’s work process that is problematic. At the time of the judgment in CILFIT, the CJEU still had the practice of documenting a quite extensive summary of the arguments of the various parties in the judgment. However, since over a decade has passed,57 and more particularly since the amendment of the Court’s Rules of Procedure in 2012, it has more or less stopped doing so.58 This is significant, and problematic, since a valuable part of adjudication, that is, formalising an actual dialogue between the various parties and engaging with their arguments, is rendered invisible. Therefore, the amendment of the Rules of Procedure undermines the potential meaningfulness of a European judicial dialogue.
The two steps outlined above – namely an awareness of one’s own culturally embedded understanding of law, and the expression of this particular understanding in visible, transparent arguments – could be considered a more detailed understanding of what is required by the enhanced understanding of paragraphs 18–19. But so far nothing new is created, whereas, as observed through the close reading of paragraph 20 in section 4 above, the CJEU requires the creation of a European legal culture, mindful of the context, legal system, objectives, and evolution of the EU as a whole. This requires not just the realisation and awareness of national courts’ own particular understanding of law combined with at least some understanding of different national courts’ embeddedness. What is required to fulfil the condition of paragraph 20 is that a serious attempt must be made by the participants of a judicial dialogue to respond to the different embedded understandings, and to the particular exigencies of EU law. It is in this response that something meaningful is created. A proper response is therefore new: judges of national courts should go beyond their own and each other’s culturally embedded understanding of law. A European legal culture is created in a dialogue that is responsive to its participants’ particular understanding of law and in this dialogue a new ‘European’ legal understanding is created.
Together these three steps form our solution to the challenge of participants of a European judicial dialogue, that is, they form the beginning of a meaningful dialogue at the level of different embedded legal language practices. The continuation of such dialogue requires the continuous responsiveness in the dialogue and thereby the creation of something new out of one’s own and each other’s particular understanding of law.
Participants of a European judicial dialogue: judges of national courts of the CJEU and members of EU institutions need to learn to talk differently with each other. This means they should create a new European language practice together in a judicial dialogue, in which a deep recognition of different culturally embedded understandings of law is recognised as vital, thereby creating a particular European legal culture.
1Kate Lyons and Gordon Darroch, ‘Frexit, Nexit or Oexit? Who Will Be Next to Leave the EU?’ The Guardian (27 June 2016) <https://www.theguardian.com/politics/2016/jun/27/frexit-nexit-or-oexit-who-will-be-next-to-leave-the-eu> accessed 29 June 2018.
2Peter Müller and Christoph Schult, ‘Merkel Risks Deepening EU Rifts’ Spiegelonline (18 October 2017) <http://www.spiegel.de/international/europe/rule-of-law-dispute-deepens-rifts-in-european-union-1173184.html> accessed 13 June 2018.
3See for instance Allan Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2008) 1 European Journal of Legal Studies 121.
4See on this point Geneviève Helleringer and Kai Purnhagen, ‘On the Terms, Relevance and Impact of a European Legal Culture’ In: Geneviève Helleringer and Kai Purnhagen (eds), Towards a European Legal Culture (Beck/Hart Publishing/Nomos 2014) 3–4.
5See Anthony Arnull, ‘Judicial Dialogue in the European Union’ In: Julie Dickson and Pavlos Eleftheriadis, Philosophical Foundations of European Union Law (OUP 2012) 133. By way of a contrast, in that same edited volume, George Letsas disputed the value of the concept of ‘dialogue’ as a solution to the ‘problem’ of legal pluralism. (George Letsas, ‘Harmonic Law – The Case Against Pluralism’ In: Dickson and Eleftheriadis, Philosophical Foundations of European Union Law (Oxford Scholarship Online 2012). The core of Letsas’ argument is a ‘de-bunking’ of the myth according to which legal pluralism in the EU presents a problem for mainstream (positivist) legal pluralism. Letsas places positivist legal theory (that he defines as legal theory that sees law as a system of rules with a rule of recognition, or at least a clear hierarchy) in opposition to what he calls non-positivist legal theory, which places political morality at the heart of law. However, we do not subscribe to the limited view of law as a mere system of rules, nor do we view legal pluralism as a theoretical problem that needs to be resolved through a conceptual judicial dialogue. Rather, we see legal pluralism as a fact (much like the plurality, diversity of natural languages on the European continent) that real-life jurists need to deal with in one way or the other.
6See also the second category of judicial dialogue identified by Allan Rosas (n 3) 125–126.
7We refer to the way Karen Alter has described European legal integration: not just ‘the expansion and penetration of European [Union] law into the national legal and political systems’, but also, and ‘more importantly, the acceptance of this jurisprudence within national legal systems and by national politicians’. Karen Alter, ‘Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration’ In: Anne Marie Slaughter, Alec Stone Sweet and Joseph Weiler, The European Court and National Courts – Doctrine and Jurisprudence (Hart Publishing 1998) 227.
8Case C-283/81 CILFIT  ECR 3415.
9Ludwig Wittgenstein (G.E.M. Anscombe (tr)), G.E.M. Anscombe and Richard Rees (eds), Philosophical Investigations (Basil Blackwell 1986).
10We could also have used a different view on language and meaning, such as the one developed by Hans-Georg Gadamer, Truth and Method (3rd edn, Bloomsbury Academic 2004). We could have demonstrated a similar point with use of anthropological research done by Clifford Geertz, Local Knowledge: Further Essays In Interpretative Antropology (Basic Books 1983). For a different, but interesting discussion of (among other things) the difficulty with communicating in law across different languages (cultures) see: Marianne Constable, Our Word is Our Bond. How Legal Speech Acts (Stanford University Press 2014).
11See Case 314/85 Foto-Frost  ECR 4199, para 15; Case 66/80 International Chemical Corporation v Amministrazione delle Finanze  ECR 1191; Case C-34/10 Brüstle  ECR I-9821, para 25; Case C-195/06 Österreichischer Rundfunk  ECR I-8817, para 24; Case 327/82 Ekro  ECR 107, para 11; Case C-287/98 Linster  ECR I-6917, para 43; Case C-170/03 Feron  ECR I-2299, para 26 and Case C-316/05 Nokia  ECR I-12083, para 21.
12The preliminary reference procedure has been described and analysed in a large number of academic publications. It goes beyond the scope and purposes of this article to list them all, but for a good example, see for instance Anthony Arnull, The European Union and its Court of Justice (2nd edn, OUP 2006) 95–131, or Martin Broberg and Niels Fenger, Preliminary References to the European Court of Justice (2nd edn, OUP 2014).
13Case 107/76 Hoffmann-La Roche  ECR 957, para 5; Joined cases C-35 and C-36/82, Morton and Jhanjan  ECR 3723, para 8; Case C-3/16 Aquino, ECLI:EU:C:2017:209, para 33 and the case law cited in footnote 2 above.
14Article 19(3)b TEU and Article 267 TFEU.
15See for instance Catherine Barnard and Steve Peers, European Union Law (2nd edn, OUP 2017) 293–294.
16See for instance para 32 in Aquino (n 13). See also Hjalte Rasmussen, ‘The European Court’s Acte Clair Strategy in CILFIT – or: Acte Claur, of Course! But What Does It Mean?’ (2015) 40(4) European Law Review 475–489, 478.
17Alec Stone Sweet, ‘The Juridical Coup d’Etat and the Problem of Authority: CILFIT and Foto-Frost’ In: Luis Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law – The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 201.
18See for instance Case C-379/15 Association France Nature Environnement, nyr, paras 48–50; Case C-207/14 Hotel Sava Rogaska ECLI:EU:C:2015:414, paras 25–28. In the Case C-160/14 Ferreira da Silva ECLI:EU:C:2015:565, para 39–40, the CJEU refers to Case C-495/03 Intermodal Transports  ECR I-8151, paras 33–37, which, in turn, refers to the CILFIT criteria.
19Association France Nature Environnement (n 18) paras 48–50 and Ferreira da Silva (n 18) paras 39–40.
20Hotel Sava Rogaska (n 18), para 26.
21See for instance Peter J. Wattel, ‘Kobler, CILFIT and Welthgrove: We Can’t Go On Meeting Like This’ (2004) 41 Common Market Law Review 177; David Edward, ‘Reform of the Article 234 Procedure: Limits of The Possible’ In: David O’Keeffe (ed), Judicial Review in European Union Law, Liber Amicorum Lord Slynn (Kluwer Law International 2000) 119; Morten Broberg, ‘Acte Clair Revisited: Adapting the Acte Clair Criteria to the Demands of the Times’ (2008) 45 Common Market Law Review 1383; Hanna Sevenster, ‘Good Old CILFIT – pleidooi voor een ‘make-over’’ In: Tristan Baume et al. (eds), Today’s Multilayered Legal Order: Current Issues and Perspectives (Uitgeverij Paris 2011) 297–305; Valentin Paul Neamt, ‘The Obligation of National Courts Against Whose Decision There is No Judicial Remedy to Refer Questions to the Court of Justice of the European Union’ (2016) 17 Journal of Legal Studies 24. Ricardo García and Estela Ferreiro Serret, ‘Hardening the Preliminary Reference Procedure in a Union in Crisis: Kernkraftwerke Lippe-Ems’ (2016) 53 Common Market Law Review 819. See also Case C-338/95 Wiener v Hauptzollamt Emmerich  ECR I-6495, Opinion of AG Jacobs; Case C-461/03 Gaston Schul Douane-Expediteur  I-10513, Opinion of AG Ruiz-Jarabo Colomer. See for a confirmation of CILFIT as valid law Case C-99/00 Lyckeskog  ECR I-4839 and Case C-99/00 Lyckeskog  ECR I-4839, Opinion of AG Tizzano, paras 55–76.
22Arnull (n 12) Chapter 4 and Chapter 16; Broberg and Fenger (n 12) 230–256; Rüdiger Stotz, ‘Case Law of the CJEU’ In: Karl Riesenhuber (ed) European Legal Methodology (Intersentia 2017) 557–558. Stotz notes that the calls for a revision of CILFIT have not been taken up. Case C–411/05 Palacios de la Villa v Cortefiel Servicios SA  ECR I–8531, Opinion of AG Mazák, paras 79–100.
23Case C-224/01 Gerhard Kobler v Austria  ECR I-10239 and Case C-173/03 Traghetti del Mediterraneo SpA v Italy  ECR I-5177; see also Ferreira da Silva (n 18).
24Ullens de Schooten and Rezaabek v. Belgium no 3989/07 and 38353/07 (ECtHR, 20 September 2011); ECtHR Dhahbi vs Italy no 17120/09 (ECtHR, 8 April 2014); Schipani v. Italy, no 38369/09 (ECtHR, 21 July 2015); indirectly also: Arlewin vs Sweden no 22302/10 (ECtHR, 1 March 2016).
25Note that at the time of the judgment in CILFIT, there were only 7 languages, the comparison of which was already deemed too difficult, whereas now, anno 2018, there are 24 official languages in the EU, making a comparison even more difficult.
26See Wiener v Hauptzollamt Emmerich See (n 21), Opinion of AG Jacobs; also Gaston Schul Douane-expediteur (n 21), Opinion of AG Ruiz-Jarabo Colomer, para 53, who called the CILFIT requirements ‘unviable’ already at the time it was adopted, but at present – in an expanded EU – ‘preposterous’. See also Palu Craig, ‘The Classics of EU Law Revisited: CILFIT and Foto-Frost’ In: Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law – The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 188.
27See, for instance, Rasmussen (n 16) 242; Federico Mancini and David Keeling, ‘From CILFIT to ERT: The Constitutional Challenge Facing the European Court’ (1991) 11 Yearbook of European Law, 1. See also Daniel Sarmiento ‘CILFIT and Foto-Frost: Constructing and Deconstructing Judicial Authority in Europe’ In: Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law – The Classics of EU Law Revisited on the 50 Anniversary of the Rome Treaty (Hart Publishing 2010) 195.
28CILFIT (n 8) par 16, see David Edward, ‘CILFIT and Foto-Frost in their Historical and Procedural Context’ in Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law – The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 178–179. See for a similar positive reading of CILFIT Lyckeskog (n 21) Opinion of AG Tizzano, paras 55–76.
29Joined cases 28–30/62, De Costa en Schaake et al v. Nederlandse belastingadministratie  ECR 31.
30On this point see Rasmussen (n 16) 475.
31CILFIT (n 8) para I “Facts and Procedure”.
37See for instance Gerhard Bebr, ‘The Rambling Ghost of “Cohn-Bendit’’: Acte Clair and the Court of Justice’ (1983) 20 Common Market Law Review 439 and Mancini and Keeling (n 27) 2–13; Sevenster (n 21) 305.
39See for instance CJEU Opinion 2/13 on the Draft agreement for the accession of the EU to the ECHR ECLI:EU:C:2014:2454, para 170; see also case C-284/16 Achmea, ECLI:EU:C:2018:158, para 59. See generally René Barents, The Autonomy of Community Law (Kluwer Law International 2004) 45.
40In this section we borrow from: Jacobien van Dorp, On the Nature of Legal Understanding and the Quality of Transnational Communication in Law (Cadmus 2015).
41That is after 1929. See: P.M.S. Hacker, Wittgenstein’s Place in Twentieth-Century Analytic Philosophy (Blackwell Publishers 1996) 1, 97–136.
42For a good understanding of Wittgenstein’s philosophy see: Paul Horwich, Wittgenstein’s Metaphilosophy (Clarendon Press 2012) See for further reading: Gordon P. Baker & P.M.S. Hacker, Wittgenstein: Meaning and Understanding: Essays on the Philosophical Investigation, Volume 1–2 (Wiley 1991); Gordon P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar and Necessity (Wiley 2009); Meredith Williams, Blind Obedience: Paradox and Learning in the later Wittgenstein (Routledge 2010); Meredith Williams, ‘Rules, Community and the Individual’ In: Meredith Williams, Wittgenstein, Mind and Meaning – Towards a Social Conception of the Mind (Routledge 1999) 157–187; William Child, Wittgenstein (Taylor & Francis 2011).
43See James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (University of Chicago Press 2001); James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Brown 1973); James Boyd White, The Edge of Meaning (University of Chicago Press 2003); James Boyd White, ‘How Should We Talk About Religion? Inwardness, Particularity, and Translation’ (2001) Erasmus Institute Papers 1.
44Wittgenstein (n 9) section 1.
45ibid. section 1 (emphasis added).
46See for example: Michael Dummett, ‘Realism’ In: Michael Dummet, Truth and Other Enigmas (Harvard University Press 1978).
47Wittgenstein (n 9) section 1.
51Marta Chromá, ‘A Dictionary for Legal Translation’ In: Cornelis J.W. Baaij (ed), The Role of Legal Translation in Legal Harmonization (Kluwer Law International 2012) 136.
52Jaakko Husa, ‘Understanding Legal Languages: Linguistic Concerns of the Comparative Lawyer’ In: Cornelis J.W. Baaij, The Role of Legal Translation in Legal Harmonization (Kluwer Law International 2012) 161–181.
53See also Barbara Pozzo, who points at the subtle differences between the meanings of ‘Eigentum’, ‘propriete’, ‘property’ and ‘proprieta’. Barbara Pozzo, ‘Multilingualism, Legal Terminology and the Problems of Harmonising European Private Law’ In: Barbara Pozzo and Valentina Jacometti (eds), Multilingualism and the Harmonisation of European Law (Kluwer Law International 2006) 7–8.
54Court of Justice of the European Union, ‘Brochure Working as an English-language lawyer linguist at the Court of Justice of the European Union’ <https://curia.europa.eu/jcms/upload/docs/application/pdf/2009-03/brochure_en.pdf> accessed 19 July 2018.
55See Antoine Vauchez, Brokering Europe (CUP 2015) 187. See also, more extensively, Karen McAuliffe, ‘Precedent at the ECJ: The Linguistic Aspect’ (2013) 15 Current Legal Issues 483–493.
56See for an example of the cultural differences between the French legal practice and the English legal practice: Barry Nicholas, The French Law of Contract (Clarendon Press 1992).
58Before the amendment of the Court’s Rules of Procedure in 2012, the law clerks of the Court always summarised the arguments of the parties for a formal preparatory document called the Report for the Hearing. The summary of the arguments of the parties was thus already made, and subsequently copy-pasted into the judgment under a separate heading. However, as of 1 November 2012, the Court does not prepare a Report for the Hearing anymore, and as a consequence, summarising the arguments of the parties is now rare. As M.-A. Guadissart and S. van der Jeught note, there has been a heated debate about the disappearance of the Report for the Hearing and the summary. Various Member States had argued before the Council of Minister’s Working Group on the Court’s Rules of Procedure that the Report for the Hearing was valuable for a better understanding of the case and for a greater transparency. However, the Court itself wished to abandon the Report, given the burden it presented for its workload. See Marc-André Gaudissart and Stefaan van der Jeught, ‘Het nieuwe reglement voor de procesvoering van het Hof van Justitie. Een overzicht van de belangrijkste wijzigingen’ (2013) 4 SEW 159, 165–166.
59James B. White, Justice as Translation – An Essay in Cultural and Legal Criticism (The University of Chicago Press 1990) 4.
PP was member of the editorial board of UJIEL, on a voluntary basis, from June to November 2017.

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D. CLELAND, CAROL MCBRIDE, KING, and URASKI Defendants.
Plaintiff alleges that he tried to kill himself by taking pills on May 1, 2018. (Doc. 1, p. 5). Although he was initially taken to the Health Care Unit, he was then escorted to the back where defendant Cleland started to beat him, while defendants McBride, King, and Uraski stood by and failed to intervene. Id. Plaintiff was handcuffed with his hands behind his back at the time. Id.
Count 1 - Cleland beat Plaintiff while he was handcuffed, in violation of the Eighth Amendment, while McBride, King, and Uraski failed to intervene.
The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred, and that “it was carried out ‘maliciously and sadistically' rather than as part of ‘a good-faith effort to maintain or restore discipline.'” Wilkins, 559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). The factors relevant to this determination include: (1) the need for the application of force; (2) the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response. Lewis v. Downey, 581 F.3d 467, 477 (7th Cir. 2009); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).