26 February 2024

On Citing Van Gend & Citing it Correctly

There are multiple common misunderstandings that have, over time, taken on the status of established truths. For example, to Sherlock Holmes is often attributed the quote “Elementary, my dear Watson”, which never appears in the Conan Doyle novels. Neither did Voltaire ever confide to anyone that he “disagreed with what you say, but will defend to the death your right to say it”. Similarly, nowhere in the Star Trek franchise has the pithy instruction “Beam me up, Scotty” been uttered by anyone. Moving from popular trivia to the realm of law, in his opus magnum, Charles de Montesquieu did not ever propose that the three state powers are to be separated rigidly – merely outlining this particular template as but one possibility among various other constitutional designs.

In EU law, there exists a similar widespread misconception, albeit tiny in nature. Simultaneously, it does concern the probably most famous ruling ever delivered by the European Court of Justice, so the comparative weight is substantial. As one might expect, in the past six decades, said judgment has been ubiquitously referenced – yet thereby, as it seems, also ubiquitously cited in a curiously defective manner. This has produced, arguably, the most poignant misquotation of all time.

The underlying case stemmed from the Netherlands, and pertained to a legendary transport firm. Said enterprise was founded in 1809 by a coachman from Antwerp, teaming up with a brother-in-law who happened to run a similar business. Perhaps to facilitate the intended cross-border stature and presence of their newly created company, they christened it with the combination of their surnames, linking these two with the aid of a universally accepted sign, the ampersand (&). Throughout the 19th and 20th centuries, the brand managed to survive a grand sequence of mergers, takeovers, and divestments, with the venture eventually ending up as a division of the global express firm DHL in 2003.

In 1962, as known, a case was put before what was then the Court of Justice of the European Communities, which concerned customs duties for a certain chemical exported from Germany to the Netherlands. As the reader will scarcely need to be reminded, this affair produced the revolutionary judgment that laid down the crucial doctrine of direct effect. As indicated in the official series in which the jurisprudence was duly published, however, the reference from the national court, and the dictum from the ECJ, stuck to the authentic name of the aforementioned firm, instead of needlessly inserting words of Dutch – and especially, these documents did not replace the ampersand with the word ‘en’ (meaning ‘and’ in English). Thus, it would have been equally appropriate for e.g. a Frenchman to interpret the case name as ‘Van Gend et Loos’, for a German to understand it as ‘Van Gend und Loos’, or an Italian to read ‘Van Gend e Loos’. Yet, strikingly and miraculously, countless authors have ever since chosen to ignore the original spelling, which has resulted in the staple ‘Van Gend en Loos’ – a highly peculiar designation that was never to be found on any of the company’s trucks, trains or vans, business premises, workwear or stationary.

Why, then, have scores of people gotten this wrong, spontaneously drawing a word from a language they, more often than not, do not even master? Even more remarkably, it is neither obscure publications nor less competent colleagues who have succumbed to making the mistake. The long string of faulty references spans the gamut of EU law, ranging from well-known articles in high-ranking legal journals (see e.g. here and here) to leading textbooks (see e.g. here). Somehow, the lapsus turns up in an elaborate network analysis of cross-references throughout the body of ECJ case law (see here). Astoundingly, the same goes for the prominent historiographers who have attempted to dissect the judgment’s genealogy (see here and here). The Court itself celebrated the 50-year anniversary of the decision in 2013, culminating in a logo, book, conference and website that embarrassingly rehearse the key error. In his extensive written work, even the Court’s longtime President has practised this slip of the pen. Conversely, there are thankfully enough who get it right (see e.g. here, here and here), though that itself underscores the strange schism looming large within the literature.

Where, then, did things go astray? Contrary to the assertions in numerous footnotes, the incriminated ‘en’ is not to be found in the erstwhile European Court Reports. Nonetheless, the erroneous thread must have started early, following closely on the rendering of the actual judgment. A preliminary investigation suggests the core sin lay with an English-language summary of the judgment appearing in the venerable Common Market Law Review in March 1963, accompanied by an annotation by the Leiden professor Ivo Samkalden that reiterated the ‘amended’ reference. From that point on, others in the budding discipline may have begun to emulate the styling, not unlike how medieval monks inadvertently made alterations to the classic manuscripts they were just supposed to be copying. Apparently, few have chosen to check back with the authentic source – perhaps comparable to the revelation in a recent study on how swiftly authorities go on to become canonical, despite resting on shaky foundations indeed. In odd contrast, the American Journal of International Law of January 1964, commenting on the case, did manage to faithfully reproduce the ampersand, yet failed to spark a uniform trend.

Undoubtedly a more meticulous investigation is warranted, as the foregoing offers only a brief and tentative exploration. The main takeaway is nevertheless that far too many have so far been unconsciously posing as Dutch, wasting two whole spaces where a single subtle character would have sufficed. Of course, as Seneca observed so astutely, recognition of a wrong constitutes the beginning of salvation. Our epistemic community ought to take note and progress. For sure, even when bordering on the trivial, scholars need to stay perennially aware of sloppy references & aim to steer clear of the most elementary misquotation.


On Citing Van Gend & Citing it Correctly

, VerfBlog,
2024/2/26, https://verfassungsblog.de/on-citing-van-gend-citing-it-correctly/, DOI: 10.59704/fe0e7c25d550e92b.

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