That Was The Week That Was 13-19 March 2023
The European Courts: Saying it loud and saying it clear
The judicial mind works in particular ways. As the final arbiter of what the law says, judges need to focus on words, gossamer words, like few others. One of the most famous of all judicial statements for example, is in the World Trade Organisation dispute concerning bananas – the famous Banana Wars of the late 90s. There are several thousands of pages of transcript and decisions, helpfully summarised here, but it is all worth it for this pearl, ‘Only a banana is like a banana’. How true is that? You could live your life on that sort of wisdom.
Words matter to judges almost as much as words matter to advertising agencies. Each make their living from using words. Except, sometimes they sit at opposite ends of the spectrum on that use. This week, the week that was, we were gifted a tour of that spectrum, from one end to the other.
On Monday, a decision from the New Zealand Disputes Tribunal about what agencies say for their clients and what the court thinks they should mean. Mark Morgan thought that Emirates meant that when they said ‘business class’ they meant Business Class, just like their advertisements were telling them. Lie flat beds, lots of plump and comfy cushions, mini bar, internet; all that sort of thing. Big mistake. No, instead, they flew from Auckland to London with none of that. So, 13 and a half thousand NZ dollars later, Mr Morgan and his wife were made whole – as they say in the law. See the linguistic skills there?
See that way with words even more adroitly at the European Court of Justice on Friday. From Tauranga to Luxemburg, from Monday to Friday, from advertising to judicial decisions, has a week that was ever taken you so far, both physically and metaphysically?
On Friday, which was one of those days when decisions and opinions are suddenly allowed into public view – a veritable love bomb of judicial wisdom that showers down on us from time to time, we were shown that in the dancing with words stakes, their honours are in a category of their own.
First, dance with the unadulterated artistry of this decision of the Court of Justice of the EU, when it determined, in its infinite wisdom, that ‘appropriate use’ means only the ‘absence of misuse’. That might be the case if a particular use was not specified, but now, thanks to their honours, Delta has grandfather rights to slots they did not use. So that makes sense.
But it is arguably a mere bauble of linguist brilliance compared to the Advocate General noting that ‘the general principle of non-discrimination prohibits, on the one hand, treating comparable situations differently and, on the other hand, treating different situations in the same way’. So now you know.
Words matter. Do not let anyone tell you otherwise.