2.1The institutional context of EU terms

Based on the principle of multilingualism, legal translation in EU legislative institutions resembles a simultaneous enactment of laws in all official languages known as co-drafting. In practice, however, it is impossible for all language versions to be produced simultaneously. Rather, the translation process – as part of the law-making procedure – involves several distinct stages. After a legal text has been drawn up (in one language) following long negotiations and back-and-forth among experts and politicians, it is translated and, subsequently, legally revised by legal experts. The resulting draft text, also known as the primary text or ‘mastertext’ (Mori 2018, 6), is supplemented and amended several times. These additions and changes are made in different languages and by different authors (Mori 2018, 6). Such unprecedented level of heteroglossia in the process of drafting thereby leads to hybrid utterances to the point that it may be difficult to pinpoint the source text (Graziadei 2014, 73). On the other hand, from the point of view of legal effect and legal certainty, all 24 official EU languages have the same value and status (equal authenticity), as has been repeatedly confirmed by CJEU’s settled case-law (Bajčić 2021b). Paradoxically, despite equal authenticity of all EU languages, not all official languages are used as working languages. While English, German and French are preferred as working languages, especially for internal purposes of the institutions, English remains the main language in drafting legislation and political negotiations (Bajčić 2021a, 276–277).

2.2The curious case of EU synonymy and polysemy

In this context the question is raised whether terms denoting both EU concepts and national law concepts are to be regarded as polysemous. From the perspective of the dogmatic monosemy postulated by the traditional terminology theory (Peruzzo 2010, 179), polysemy and synonymy were regarded as undesirable linguistic phenomena in specialized texts, undermining the purpose of prescriptive standardization. It should be noted that, for decades, terminology has been rooted in applications, while its theoretical and methodological principles have primarily attempted to answer questions raised by these applications (L’Homme 2020, 6). Observed in this light, it is not surprising that synonymy and polysemy were considered detrimental to standardization and the ideal of univocity as a requirement for precise expert communication. However, analysing terms and concepts without thinking of creating a prescriptive terminology database or compiling a specialized dictionary can account for a deeper understanding of the domain in question.

Recent descriptive approaches to terminology put the focus of attention on the study of terms in real texts, harnessing new models to describe the different deviations from the ideal one-to-one relationship between a concept and the term designating it, acknowledging that variation is part of every language. Such models include more nuanced categories of term variants and meaning modulation, allowing for a better understanding of subtle changes affecting terms in specialized texts and the dynamics of domain knowledge.

In this context it is interesting to note that the term withdrawal has multiple meanings, that is, meaning distinctions within the same domain of EU law, demonstrating the presence of polysemy in specialized, EU legislative texts. In addition to the right of withdrawal as used in the context of consumer protection law, the most salient sense of withdrawal at the moment is manifested in the context of the UK’s withdrawal from the EU.33.Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community OJ C 384I, 12.11.2019, p. 1–177. Such meaning modulations represent a deviation from the more common meaning; they are however, not strong enough to be regarded as polysemy (L’Homme 2020, 110).

While terminological variation is closely related to synonymy as a symmetric relation between terms that have the same meaning or very close meanings, it includes a wider range of phenomena where the same concepts can be expressed differently in text (L’Homme 2020, 153). In this sense Freixa (2006, 51) uses the label denominative variation, in contrast to conceptual variation which refers to the variation at the level of the concept. Term variants take different linguistic forms such as inflected forms, graphical variants, synonymic and near-synonymic expressions. Even different contextual phenomena affecting the structure of terms (e.g. insertions or omissions) are regarded as variants (L’Homme 2020, 153). On the other hand, synonyms belong to the same part of speech and share structural properties. Traditional terminology theory was interested in conceptual synonymy concerned with two terms that refer to the same concept as exact synonymy.44.Wüster (1985, 79–83), as a pioneer in terminology work, introduced the distinction between Einsinnigkeit (‘one sense’) and Eindeutigkeit (‘unambiguousness, having only one meaning’; ‘monosemy’), maintaining that in terminology we should strive for one meaning, rather than one sense. Likewise, he distinguished Mehrsinnigkeit (‘more senses’) from Mehrdeutigkeit (‘more than one meanings’, ‘polysemy’). While Mehrsinnigkeit applies to the entire lexicon of a language, Mehrdeutigkeit refers only to a specialized field (Bajčić 2017, 52–53). Accordingly, polysemy has been treated as homonymy (when one term denotes two different concepts) in terminological resources. In a pair of exact synonyms member 1 can replace member 2 in all the sentences where member 2 appears. Conversely, member 2 can replace member 1 in all the sentences where member 1 appears. Member 1 and member 2 share all characteristics, that is, everything that characterizes one member of the pair is also valid for the other (L’Homme 2020, 161). Needless to say, it is difficult to come across this type of synonymy in real texts. On the other hand, variation, e.g. according to usage within different fields of knowledge warrants further investigation steeped in terminology, lexical semantics and EU law. In this context, the term conceptual variation (Freixa 2002, 54) might be misleading in view of the fact that legal scholars consider that conceptual divergence, unlike linguistic variance, becomes legally meaningful only if, and to the extent that, it functions in arguing for conflicting courses of action ‘according to the law’ (Prechal and van Roermund 2008, 3). In that sense, it poses a risk to the uniform application of EU law. Conversely, conceptual convergence (as a special kind of coherence) can be regarded as the main goal of EU law, as law requires unity or “the perception of movement towards (virtual) unity” (Prechal and van Roermund 2008, 1). For this reason, conceptual divergence cannot be identified by means of a corpus analysis alone, as will be elaborated in the following section.

3.1Diachronic analysis of terms

Although the fact that the consumer’s right of withdrawal is a new concept of EU consumer law in itself justifies the need to use a distinct, new term in other EU languages to designate this concept (Šarčević and Čikara 2009, 204), this has not always been the case. A source of confusion in relation to this concept was its inconsistent rendering in English in some of the older EU directives, such as the Doorstep Selling Directive 85/577/EEC which used the term right of cancellation (in French: le droit de résilier le contrat; in German: das Widerrufsrecht; in Croatian: pravo na otkazivanje ugovora).55.Directive 85/577/EEC to protect consumers in respect of contracts negotiated away from business premises; no longer in force. All of these terms however are used in national legal systems to denote similar or dissimilar existing legal concepts. Likewise, the terms to withdraw and to cancel were used as synonyms in tandem with right to withdraw and right of cancellation (in French: le droit de résiliation, le droit de se rétracter; in German: das Recht vom Vertrag zurückzutreten, das Rücktrittsrecht) in Art. 5 of the Timeshare Directive 94/47/EC. The Croatian version of the latter Directive testifies to even greater terminological variation, as right of cancellation was rendered as pravo otkazivanja and pravo otkaza [in English: right of cancellation and right of termination]; while right to withdraw and withdrawal period as pravo se povući and rok povlačenja [in English: right to withdraw and period of withdrawal]. The lack of consistency has been remedied with the adoption of the 2009 Timeshare Directive, which employed the terminology of the Distance Contracts Directive, namely withdrawal (Baaij 2018, 209). The German, French and Dutch language versions likewise used consistent terms: Widerruf, rétraction, herroeping. As herroepingsrecht was already being used in the Dutch and Belgian legal systems to indicate the legal act of rescinding an offer of a contract, but not the breaking of a contract, choosing a neologism terugtreding, which was stated in the 1994 Timeshare Directive, would have been better suited to signal the introduction of a new legal construct in the Dutch legal system (Baaij 2018, 209). The Croatian version of this Directive (and Distance Selling Directive 97/7/EC) used the term pravo odustajanja respectively.

3.2A corpus-informed analysis of English, German and Croatian terms

In order to analyse term variants for this concept we have used parallel concordancing of the EUR-Lex corpus English 2/2016 available in SketchEngine. For this purpose, two subcorpora consisting of ten directives in English and German and in English and Croatian were used. Three of the directives were not available in Croatian in SketchEngine and were therefore analysed separately in the online database of EU legislation EurLex. The directives included in the analysis were identified by conducting a keyword search of the term right of withdrawal in the English EUR-Lex corpus (see Annex).

The results presented in Table 1 show term variants in the Croatian version of the directives only.

We have included directives no longer in force as well in order to observe term variants diachronically. For two of these, Directive 2003/54/EC and Directive 2003/54/EC, the Croatian versions were not available. The German version of Directive 2002/65/EC used both Rücktrittsrecht and Widerrufsrecht before being amended. According to earlier research, the Croatian version of Directive 2002/65/EC available before Croatia’s EU accession used the term pravo istupanja (Šarčević and Čikara 2009, 205) which has been replaced by pravo odustajanja. It is regrettable that other inconsistencies in the usage of terminology have not been blotted out as well, so that even today there are different term variants used in different directives. Some of the identified term variants can be regarded as morphosyntactic variation (Peruzzo 2010, 184), in the sense of different parts of speech patterns, e.g. pravo odustajanja (noun+noun), pravo na odustajanje (noun+preposition+noun) or pravo odustati (noun+verb) in the Croatian version of the Directive 97/7/EC (see Figure 1).

Figure 1.Variants in the Croatian version of Directive 97/7/EC

Similarly, pravo na odustanak (noun+preposition+noun) and pravo odustanka (noun+noun) can be regarded as minor morphosyntactic variations in the Croatian version of Directive 2014/17/EU (see Figure 2.), in view of the fact that they do not cause a semantic change.

Figure 2.Variants in the Croatian version of Directive 2014/17/EU

On the other hand, the term variant pravo na raskid ugovora (see Table 1) could potentially lead to conceptual divergence as it denotes a concept of national civil law of distinct meaning than the EU concept of the right of withdrawal. Using existing national terminology runs the risk that national judges will not apply the term in its EU sense (Šarčević and Čikara 2009, 208) as terms already used within a national legal system have a history of judicial interpretation and application (Baaij 2018, 210). In consequence, the usage of national terms may undermine uniform application of EU law Union-wide.

The variant pravo na povlačenje which was used in the old Timeshare Directive 94/47/EC could also lead to conceptual divergence as the expression povlačenje belongs to ordinary language and is devoid of any legal meaning (Šarčević and Čikara 2009, 205). It is thus surprising that it is still used in the Croatian version of Directive 2008/48/EC (see Figure 3).66.The latter term povlačenje is also used in the EU’s terminology database IATE for withdrawal, while the database contains no Croatian terms for right of withdrawal. On the other hand, it entails three German equivalents for the right of withdrawal: Kündigungsrecht, Recht auf Kündigung des Vertrags, Widderufsrecht. https://​iate​.europa​.eu​/home (Accessed 1 February 2022).

Figure 3.Variants in the Croatian version of Directive 2008/48/EC

Interestingly, term variants seem to be present to a greater extent in other types of legislative texts such as judgments, decisions,77.E.g. Kündigungsrecht instead of Widerrufsrecht is used in the German version of the judgment in case C-359/11 Alexandra Schulz v Technische Werke Schussental GmbH und Co. KG and Josef Egbringhoff v Stadtwerke Ahaus GmbH, ECLI:EU:C:2014:2317; in a Commission Decision: State aid – Germany – State aid C 27/07 (ex NN 29/07) – Berlin Schönefeld Airport – Invitation to submit comments pursuant to Article 88(2) of the EC Treaty, OJ C 257, 30.10.2007, p. 16–46. and especially in non-legislative consumer-centred texts, such as forms and websites containing general information for the consumers. In the latter contexts, term variants appear in other languages as well, as the following examples illustrate. For instance, the English version of the website of the European Consumer Centre Network explains the right of withdrawal in words of everyday language: “you have 14 days to change your mind”.88. https://​www​.europe​-consommateurs​.eu​/en​/shopping​-internet​/14​-days​-to​-withdraw​.html (Accessed 1 February 2021) Similarly, the Croatian version of the website follows the English wording and uses everyday language to explain the concept as well (imate pravo da se predomislite),99. http://​ecc​-croatia​.hr​/trgovina​-putem​-interneta/ (Accessed 1 February 2021) whereas the German version of the website refers to the term Widerrufsrecht, 1010. https://​www​.evz​.de​/einkaufen​-internet​/online​-einkauf​.html (Accessed 1 February 2021) while the Austrian refers to Rücktrittsrecht.1111. https://​europakonsument​.at​/kaufen​-bestellen​/5226 (Accessed 1 February 2021) As a matter of fact, in Austrian German, the right of withdrawal is rendered by two different designations, namely Widerruf and Rücktritt. While the Consumer Rights Directive uses Widerruf, the Austrian FAGG (Fern- und Auswärtsgeschäfte-Gesetz, in English: Distance Transactions Act) uses Rücktritt; the forms (attached to the Austrian Act) use Widerruf.1212. https://​www​.wko​.at​/service​/wirtschaftsrecht​-gewerberecht​/Ruecktrittsrecht​_bei​_Dienstleistungen​_im​_Internet​.html#heading​_Ruecktritt​_oder​_Widerruf_ (Accessed 1 February 2021) Another interesting example is the Croatian central government portal that uses the term pravo na jednostrani raskid ugovora, that is, national law terms to explain this European consumer standard.1313. https://​gov​.hr​/moja​-uprava​/pravna​-drzava​-i​-sigurnost​/prava​-potrosaca​/zastita​-potrosaca​/prava​-potrosaca​-pri​-kupovini​-na​-daljinu​-ili​-izvan​-poslovnih​-prostorija​/2023 (Accessed 1 February 2021). Designed as the central online platform of the Croatian Government the Portal serves the purpose of enabling citizens to access all information pertaining to the public administration and public services.

However, variation in legally binding instruments such as directives intended to harmonize national contract law has more far-reaching consequences as it can impede the objective of harmonization. This is evident in the case of the transposing Croatian legislation, namely the Croatian Obligations Act (odustati od ugovora and raskinuti ugovor) and the Croatian Consumer Credit Act (pravo na odustanak) which deviate from the terms used in the Croatian versions of the directives they transpose.1414.Obligations Act, Official Gazette “Narodne Novine” Nos. 35/05, 41/08, 125/11, 78/15, 29/18; Consumer Credit Act, Official Gazette “Narodne Novine” Nos. 75/09, 112/12, 143/13, 147/13, 09/15, 78/15, 102/15, 52/16. The Croatian Obligations Act uses the terms odustati of ugovora and raskinuti ugovor (as a national law term) as synonymous, however, these can be considered as meaning modifications, because each is used in a different context. Art. 663 of the Obligations Acts uses the term odustanak od ugovora in relation to transport agreements, while Art. 506 uses odustajanje od ugovora in relation to loan agreements, and raskid ugovora in relation to credit agreements (Art. 1024). In contrast to the consumer’s right of withdrawal, debtors who withdraw from a loan or a credit agreement are liable for damages (Šarčević and Čikara 2009, 205–206). The presence of variation in a newer EU language can be attributed to Croatia being the youngest EU Member State and still relatively recent harmonization of legislation and standardization of EU terminology. On the other hand, as previously mentioned, withdraw was replaced with cancel in the transposition of Directive 2011/83/EU into national legislation of Ireland (Biel and Doczekalska 2020, 203) as a country with a longer membership status. This lack of terminological congruence may result in conceptual divergence and varying case-law. Moreover, in case of doubt as to the meaning of a national law provision, national courts must consider the wording of the directive transposed by the national legislation in question pursuant to the principle of consistent interpretation.1515.For more on the principle of consistent interpretation see e.g. Sawyer 2007. While directives, as opposed to regulations, do not have direct effect, owing to their indirect effect or vertical direct effect (Bettlem 1995), national law provisions must be interpreted in conformity with them, that is, with EU law. What’s more, the CJEU stated that even recommendations are not devoid of legal effect and that national courts are bound to take them into consideration in order to decide disputes in particular where they are capable of casting light on the interpretation of other provisions of national or EU law.1616.This effect has been called the Grimaldi effect (Bettlem 1995, 5). Case C-322/88 Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407.

3.3Conceptual divergence

As illustrated, some variants do not lead to a semantic change (e.g. morphosyntactic variants), while others may cause conceptual divergence; either because a national law term is used to designate a new EU concept, or the concept is expressed in a general language term devoid of legal meaning. Having common EU concepts is instrumental to promote a common discourse of the community of EU lawyers irrespective of their use of different languages (Engberg 2016, 171). However, as noted in the introduction, in light of the still developing EU legal culture and lack of a common legal culture and education, conceptual divergence poses a threat to uniform application and interpretation of EU law. Thus far, CJEU’s autonomous interpretation has proven to be the most effective method of achieving conceptual congruence of EU law. A similar point is made by Graziadei (2014, 74) for whom the doctrine of autonomous meaning reflects the operative necessity to produce a uniform interpretation and application of key provisions of EU law. On the other hand, at the level of the Member States, divergent interpretations are more difficult to identify. National courts and judges still practice law in their vernaculars which reflect both the individual and community experience (the so-called encyclopaedic knowledge) (Ostroški Anić 2019, 9). This can influence the conceptualization of common EU concepts, including the right of withdrawal.

Albeit in some countries (e.g. United Kingdom, Ireland, Belgium, Greece, Sweden) in the event of the withdrawal of consumers, judges would assume that no contract had been concluded, German law recognizes a provisional state of a contract known as schwebende Unwirksamkeit (in English: provisional or pending invalidity) (Baaij 2018, 211). Within that period of Schwebezeit, i.e. until the cooling-off period expires, a contract is considered neither valid nor invalid. To what extent is the conceptualization of the meaning of the right of withdrawal in EU law in the German language separable from the background of schwebende Unwirksamkeit of contracts? The introduction of a new designation which was not previously used in national law does not guarantee that the perception of the underlying concept is independent of national legal knowledge. Therefore, divergences in the conceptualization of the scope and content of the term cannot be excluded, regardless if national or neutral terms are used to describe the concept in individual EU languages, owing to the fact that language and conceptualization are inseparable. Since meaning is an integral part of human knowledge and cognitive abilities, the meaning of a certain concept is not autonomous; rather, it is construed in relation to our conceptualization and depends on the conceptual structure within which it is situated (Ostroški Anić 2019, 9). As pointed out, such conceptual divergence is only perceived in case-law by applying the relevant EU legal concepts, and cannot be identified by relying on a corpus analysis of designations.