EU Law Concepts as Legal Transplants : Linguistic Difficulties of Transferring EU Consumer Law Concepts into Ukrainian Legal System

This article’s purpose is to review certain EU legal concepts from a comparative law and linguistics perspective and to create guidelines for adapting these EU law concepts to the conceptual system of the member states. This article draws on comparative law studies for the theory of legal transplants and on linguistics for the methodology of terminology. After analyzing the EU legal concepts as a specific type of transplants, the article focuses on specific examples of legal transplantation from EU consumer protection law. In this process, the EU law is the source system and the Ukrainian law is the recipient. Based on the consumer protection law examples, this article identifies and explains the most common linguistic reasons for transplant failures, describes the possible legal outcome for the recipient legal system and proposes a possible solution using linguistic methods.

was adopted in 2005 and includes nine EU directives on consumer protection then in effect.This law's adoption was a special measure intended to ensure that Ukrainian consumer law generally meets the requirements of the corresponding EU legislation.
The EU directives used in this article were chosen because the EC Consumer Law Compendium contains a comparative overview of how most of the directives governing consumers' contractual relations were transposed to the EU member states.However, the Compendium excludes several directives included in this article's study -the Consumer Credit Directives (87/102/EEC, 90/88/EEC and 2008/48/EС) and The Distance Selling of Financial Services Directive (2002/65/EC).
Most of the directives issued before 2005 were considered in the new version of the Law of Ukraine "On Protection of Consumers' Rights."All of the changes in the 2005 version of the harmonized Ukrainian law are reviewed in the UEPLAC project,6 which assessed the level of incorporation of the acquis into Ukrainian legislation.
Turning EU legal concepts into successful transplants is a process involving efforts from both sides -the source and the target legal systems.Difficulties can arise on both sides of this equation.

Distinguishing Features of EU Law Conceptual System
Scholars have frequently noted that the EU law's conceptual structure differs from the conceptual structure of other legal systems.Örücü describes all legal systems as either covertly or overtly mixed systems that can be divided into groups depending on the respective proportions of the mixed ingredients.7 Taking Örücü's approach, we can say that the system of EU law is a system with a high mixture index, which is also true for its conceptual system.
This high mixture index follows from the origin of EU law.From its beginning, EU law was superimposed on the national laws of its member states.Founded exclusively on civil law, EU law was influenced by the common law after the accession of the United Kingdom in 1972.Thus, EU law constitutes a mixed law in which different European legal traditions -civil and common law -were combined.8In addition, the EU legal system has developed its own principles, doctrines, rules, codes, practices and the like through the interaction between the EU law institutions and the national legal orders of the EU's member states.On these bases, Heikke Mattila has identified three types of concepts within the conceptual system of EU law: 1) general legal concepts (such as burden of proof, author's rights and the like); 2) concepts known in one or more member states' legal systems; 3) original concepts (created within the frame of the EU).9 At the EU law's conceptual core are the concepts used in the different European domestic legal systems.When developing EU law, the European Court of Justice (the "ECJ") has been borrowing concepts from different domestic legal orders.For example, the concept principes généraux with constitutional weight was adopted from the French legal order; the principle of proportionality was taken from the German legal order; the audi alteram partem principle comes from the English legal system.10Thus, the ECJ "borrows" across national legal systems when it seeks solutions for various problems confronted on the EU level.Consequently, even within the EU, harmonization is not homogeneous -some member states have to change their laws more than others do when they harmonize their laws and procedures to those of the EU.These changes must account for multilinguistic terminology and often require linguistic compromises in addition to economic and political compromises.
In addition to the concepts originating from the domestic legal systems, there are original concepts created by the EU.11 Terminological units created the new EU law concepts often are neutral and complex,12 apparently to avoid any associations with the content of the legal order of any member state.
Dividing the various sources of EU law's concepts into three categories does not mean there are three different approaches to interpreting EU law concepts.Instead, the principle of autonomous interpretation applies.Kjaer calls this interpretive method the "technique of autonomous concepts."It is based on the hypothesis that the concepts of EU law always "enjoy semantic independence."13The terminological unit in a national piece of law of any domestic legal system within the EU may not have the same interpretation as the same unit in the EU directive.Thus, this approach holds that EU law concepts are free from the meaning "that the same concepts possess in domestic law,"14 which is especially true for concepts taken into EU law from the member states' legal systems.
The ECJ is ultimately responsible for interpreting EU law and its concepts.The judgment in Océano Grupo Editorial SA v Roció Murciano Quintero showed how the concept of "good faith" long used in several domestic legal systems acquired a new meaning under EU law.15In cases when the interpretation in the domestic legal system differs from that of the ECJ, the ECJ's version prevails, which should serve as a signal for a member state to take actions and update its definition of the term accordingly.
Presumptively, legal concepts have a generally accepted meaning.16However, the ECJ uses them "instrumentally," as though they do not have a fixed, generally accepted meaning.This leads us to the third particularity of EU law's conceptual system.EU law concepts have only "some pre-determined content,"17 which allows judges to transform and develop them.The role of the ECJ is not to apply legal concepts but to interpret them.Thus, no matter how anomalous this may sound to a terminologist, it is common for a EU legal concept to be non-exhaustively defined.Allowing room for further interpretation, the ECJ leaves much of the concept's content for the domestic legal system to supply.18This practice adds a certain flexibility to EU law and makes it more easily acceptable in different domestic legal orders.The result is a form of "communication" between the ECJ and the national courts that influences the development of EU law.
Thus, we have outlined the three main distinguishing features of the EU law conceptual system: 1) the high mixture index resulting from the homogenous origin of the EU law; 2) the principle of autonomous interpretation as an obligatory approach to interpretation of the EU law concepts practiced by the ECJ; 3) the non-exhaustive definition of the EU law concepts that tend to acquire concretization later within the particular conceptual system of a member state.This third peculiar nature of the EU law's conceptual system prompts treating EU concepts as a special type of transplanting.As will be demonstrated below, the transposition of the concepts within the EU legal order is followed by an interesting linguistic process, i. e., a change of the level of concept's abstraction.But first, it is necessary to qualify this transplantation in terms of the extant typologies presented by legal theorists who are working with the notion of legal borrowing and migration of law.These typologies of legal transplants represent an attempt to classify the phenomena of legal transplantation.Therefore, they serve as a good complex of criteria for describing EU transplants.

Typology 1: Pragmatic Cause of Transplantation
This pragmatic cause of transplantation typology, as its name suggests, considers the transplantation's pragmatic elements.As Cohn presents it, the key factor in this typology is the "degree of freedom of choice," which leads to distinguishing between the two types of transplants: imposed (externally dictated) and voluntary.19Margit Cohn, "Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality in the United Kingdome," American Journal of Comparative Law 58 (2010): 584.
Thus, a transplant dictated by the EU would be -pragmatically -an imposed or externally dictated transplant.The EU potentially can be an "external dictator" under the doctrines of supremacy, irreversibility, direct applicability and the binding force of EU law.This is true for higher-level transplants as, for instance, when a state transplants specific laws.However, the adoption of concepts, a form of lower-level transplants, is a more flexible process.To some extent, EU concept transplants can be both voluntary and imposed.
For concept transplants, ideally only the choice of the linguistic form (the term) is voluntary; the semantic content should remain unchanged as the EU legislators have prescribed.Terminologists should have a good arsenal of linguistic methods to assign the best possible term representing the transplanted EU concept.However, in reality, the outcome is often different, and the definition of the same EU legal concept varies, sometimes significantly.This variability can only be justified by the necessity to adjust the interpretation in the new legal environment to ensure the proper functionality of EU directive in the national legal system.This leads us to the second typology, which deals with degree of conformity with the original transposed rule and its conformity with the original concept.

Typology 2: Degree of Conformity with Original Concept
As previously mentioned, ideally there should be no difference between the original EU term and its equivalents in the legal systems of the member states.However, some important transplanted concepts have led to pluralism and diversity rather than the desired harmonization.
This variation can be detected on two levels: 1) the horizontal level, as revealed by variations in definitions among different Community law acts; 2) the vertical level, as revealed by further semantic variations of concepts in different national legal systems.The linguistic notion of core characteristics can draw the necessary distinction between acceptable variations and non-acceptable variations.
Each concept transferred within an EU legislative act will have a number of characteristics that are the same in different legal systems.Among these is a certain semantic "common denominator."This common denominator is a group of properties a legal concept must possess in the domestic law for the EU legislative act to be treated as a successful transplant.
Further in this research it will be shown how modification of the concept after it has been transplanted from EU law crosses the border line and becomes unacceptable due to the loss of one of its core characteristic, and therefore failing to perform its function assigned by the EU legislator.
But what happens to the EU legal concept when its core characteristics are preserved, but variation is still observed?What makes the concept vary from one legal system to another?These queries lead to a very interesting linguistic phenomenon that further reveals conditions under which the vertical variation is acceptable.
The concepts tend to have different levels of abstraction, which is a result of their ability to "stretch.""Stretching" happens when the concept is modified without becoming another concept, and its major properties -its core characteristics -are preserved.The level of abstraction directly depends on the number of properties a concept possesses.A concept with many definitive properties, such as an extensive definition, would necessarily have a low level of abstraction, while a concept with several properties would belong to the high-level type.Overall, there are three levels of abstraction: high level (for universal conceptualizations), medium level (for general categorizations) and low level (for configurative conceptualizations).20 Most of the concepts in domestic legal systems have the low level of abstraction.They have specific semantics, often contextually dependent definitions (as in case of concepts functioning in the various areas of law within the same legal system), stressing on the peculiarities of the concepts rather than their similarities.However, the concepts in the EU legal system are not ordinary in this respect.Their intension is purposefully lowered in order to achieve broader applicability.Thus, they would instead fall under the type of concepts with the medium level of abstraction, for their description is still close to generalization.Only after the EU legal concept is integrated into the domestic legal system and obtains a narrower applicability typical for this legal system does it then acquire the low level of abstraction.
Thus, when one discovers that there is a difference in a definition in the EU directive and in the national act of a member state one should not be surprised why the legislator in the domestic legal system has not copied the definition from the directive.The concepts in the EU legal system and the domestic legal system simply may have the different levels of abstraction.Moving down the ladder of abstraction from the medium to the low level during the transplantation process is a normal and desirable process.Changing the level of abstraction in the domestic legal system is important so as not to leave the concept with a high abstraction level.Instead, it should have a high "explanatory power and a relatively precise descriptive content."21When there is another, second concept emerging after the source concept loses one of its core characteristics, linguists identify the situation as one of terminological polysemy, a negative result that is one of the difficulties of transplanting concepts into the target legal system.Moving from linguistics to comparative law, and linking again these two perspectives, we can claim that what is called terminological polysemy in linguistics (resulting from the divergence between the original concept and the outcome concept) is in fact what legal theorists have called transplant failure, or, to be more accurate, a type of transplant failure.

Typology 3: Formal and Informal Transplantation
The third typology considers whether a transplant is formal or informal.A formal transplantation occurs when a transplant is 'introduced as such' in the target legal system.An informal transplantation occurs when the transplant indirectly influences domestic law.As noted by Cohn, this classification of transplants resembles Bell's distinction between legal transplantation per 20 Giovanni Sartori, "Concept Misformation in Comparative Politics," The American Political Science Review 64.4 (1970Review 64.4 ( ): 1033-53. -53.se and the process that theorists call cross-fertilization.The latter is a stimulus that "promotes an evolution within the receiving legal system."22This division between transplantation and cross-fertilization can be well correlated and explained using linguistic tools.Linguistically, we can explain this differentiation by drawing a line and placing formal and semantic impact on one side and semantic-only impact on the other.There are two ways the new concept can appear in another language system.Linguists distinguish between borrowing new legal concepts along with a term and borrowing a concept when only the properties of the concept are transferred.23The first way is followed by semantic and formal changes in the recipient system, which means that one more terminological item appears in the system with its unique set of semantic characteristics and newly acquired formal cover (term).The most common example is borrowing a concept either together with a term (through transliteration) or creating a term later.On the other side of this dichotomy is semantic borrowing, which means that only the semantic characteristics of the new term are transferred.These characteristics are then expressed in the recipient language system within the extant formal cover.
The outcomes of semantic borrowing can differ.Semantic borrowing may result in polysemy if the newly transplanted concept finds its place alongside another concept within one term; thus, both concepts continue to function, albeit in different contexts.For example, the term supremacy contains two concepts.One concept is that found in EU law and signifies the whole principle of the supremacy of the EU legal order over domestic legal orders.The other concept is found in the general philosophical principles of law, according to which law is above a person, and no one can be convicted unless he or she has acted unlawfully.Alternatively, semantic borrowing can modify an already existing concept, similar to the one in the source legal system; this happens through adding and/or removing semantic characteristics.This is exactly what should happen with the concept of consumer in the Ukrainian legal system, for "consumer" still lacks one core characteristic to match the EU law concept.
This third typology requires identifying which EU law concepts will be called concepttransplants.An EU legal concept-transplant is any concept that enters a domestic legal system embedded in transplanted EU law.This is either a concept completely new for the domestic legal system after EU law was adopted, or a concept native to the domestic legal system, the characteristics of which, however, were modified and equalized with the core characteristics of the EU law concept following the transplant.
But even these typologies, although well elaborated, are incomplete.EU concepttransplants possess features that simply do not fit within the basic idea of transplantation and therefore cannot be viewed solely within these typologies.
Cohn identifies two specific characteristics of EU transplants that distinguish EU concepts from other concept-transplants.First and foremost is the idea of a linear relation between the transplant's "exporter" and its "importer."Usually, transplantation is viewed as a one-way process in which one system (the exporter) influences another system (the importer).However, in case of EU law, the long-term process of moving laws from one legal system into another gives a new picture.Legal systems within the EU share a common core -EU law.Moreover, none invariably dominates, and, over time, one system can be either the exporter or the importer of a new law.These circumstances place EU law transplants in a "form of reciprocal interaction […], in which systems share, trade or barter concepts."24 The second distinctive feature of EU transplants is that transplantation is not always a movement from a single exporter to a single importer.There are a multiplicity of importers when a concept is transplanted within the EU.There also can be several exporters.As already mentioned, the concept of proportionality, which is effectively used by the ECtHR and ECJ in its autonomous meaning and in this way transferred across EU member states comes from 19th century German public law.The autonomous interpretation of this concept in the EU legal system does not mean that this concept lost its connection to the German public law "ancestor." The three typologies presented above, together with the three specific characteristics of the EU law concept-transplant, show what makes the EU legal concept movable from one system into another.Primarily, it is the non-exhaustive interpretation, capable of variation depending on the needs of a domestic legal order.Indeed, the most common way to make a concept travel is applying conceptual stretching.25 EU law concept's origins in some domestic legal systems also favor these concepts' movement across legal systems.In addition, EU legal concepts' malleability allows importing legal systems to change their level of abstraction.Most importantly, their stable set of core characteristics makes their transfer more likely to be successful.When importing states deviate from these core characteristics, the transplant's failure is almost certain.Why and how this sometimes happens is discussed in the next part of this article.In any case, expanding a concept's meaning and therefore extending its applicability is not desirable because the expanded concept will not have the necessary precision to harmonize with EU law.

Difficulties of Transferring Legal Concepts Detected in a Source Legal System
In many cases, difficulties of transferring concepts of EU law have their roots in EU legislative acts.
Susanne Baer adds the quality of legal idea/concept to the group of factors that allows its later transferability.26Quality here is not a "value judgment" of a legal norm, but (1) its potential "to inscribe itself in the broader legal traditions" and (2) its potential "to alter conceptual underpinnings" of this tradition.This suggests that the EU concept, before any transfer begins, should demonstrate ability to travel.Baer argues that it is exactly the quality of MacKinnon's legal ideas and concepts (the concept of substantive equality is among them) that made them easily travel across European legal systems.Taking this idea into focus for the study of concept-24 Supra 13, 37. transplant, we can come from the opposite side and observe cases when the drawbacks in the quality of the concept (not the processes around it) prevent its successful transferability.
It is reasonable to start observing difficulties hiding in a source legal system from examples of polysemy and semantic variability, since these two types of semantic relations seem to be the most critical in the context of acquis communautaire and the problem of equivalence, which is always lingering over practitioners working with EU law terminology.

Polysemy and Semantic Variability in a Source Legal System
Unexpectedly, the key concept of consumer law itself becomes a 'victim' of such unfavorable for any terminological system processes as polysemy and horizontal semantic variability.
Semantic changes in the concept of consumer can be studied taking the definition in Directive 90/314/EEC27 where this concept is defined differently comparing to other EU directives of consumer protection.Typically defined in most EU legislative acts as a "natural person acting for purposes outside his/her business activity,"28 the definition of this term in Directive 90/314/EEC is comprised of three parts, providing that a consumer may be: 1) any person who takes or agrees to take the package (the principal contractor); 2) any person on whose behalf the principal contractor agrees to purchase the package (the other beneficiaries); 3) any person or any person to whom the principal contractor or any of the other beneficiaries transfers the package (the transferee).29 The obvious deviation in this definition from the standard interpretation lies in the fact that it does not provide a limitation to natural persons and, in contrast to other directives, includes legal persons.Deviation is so critical that one can claim the situation of polysemy; that is emergence of a new, second, concept within the same terminological unit.
Broadening the concept of consumer thorough adding legal persons to its scope entails illogical legal consequences: the concept can encompass traders, sellers, suppliers etc., in such a way embracing both parties to consumer contract.
Perhaps this inconsistency with the rest of the directives, and irrational interpretation and consequential loss of legal certainty prompted different member states to apply terms with much narrower semantic field to substitute the EU law term consumer when transposing Directive 90/314/EEC.In particular, the term traveler was used in the national laws of Austria, Estonia, Germany, the Netherlands, Sweden, the term purchaser in the national laws of France, Luxembourg, Slovakia, client in Latvian law, whilst the term tourist is used in Lithuanian law.
Given the above mentioned drawbacks, it is recommended to bring the definition of the concept of consumer in line with other definitions in EU consumer law.
Such syntactic structure declares that the first criteria to determine unfairness should be imbalance.Only then, after imbalance is noticed, the following step should be deciding whether this imbalance is contrary to the requirement of good faith, for it can be assumed from this structure that a contractual term can cause imbalance without contradicting the principle of good faith.

Misleading Verbal Form of a Concept in a Source Legal System
Taking semantics as the only source of difficulties of transferring legal concepts would be a misrepresentation of reality.Concepts do not function without their verbal forms.Moreover, as it will be shown in the next paragraphs, there is always a direct relation between a concept and its verbal form, and an inappropriate form of the term can significantly affect the semantic side of a term.
Every concept has a designation, represented phonologically and orthographically, that, as any other lexical unit, can be broken into constituent parts, morphemes and lexemes (in case of compound terms).Concept as a meaningful content of the term depends on how it is named.As Sartori follows up, the names tend to "provide in and by themselves guidelines of interpretation and observation."33Every designation is formally motivated.A term (as a word) is not a random sequence of sounds.There is always an interrelation between the meaning and the form.A meaning of the compound term can consist of the meanings of its parts.In the meantime morphemes, that possess grammatical meaning, can also modify semantics of the whole terminological unit.They show whether the concept is an object, a process, a state or relationship.34 In addition to that, cognitivists spotted a certain relation (that seems quite vague, though) between the level of abstraction the concept has and the impact of verbal form on its meaning.In particular, language has less impact on the concepts with the higher level of abstraction,35 and verbal forms of such concepts resemble a metaphor, i. e., when the impact of the verbal form on the intension resembles that of any figure of speech (use of language, altering its meaning).Another linguistic study has showed that terms formed through transliteration tend to have a narrower scope of applicability due to the narrow semantic field of the transliterated verbal form that preserves its foreign features.
Thus, one of the barriers is inappropriate verbal form chosen to designate the concept.As it will be seen from the illustrations below, verbal forms can be misleading in the process of interpretation, either narrowing or broadening its scope.
Directive 93/13/EEC is a type of consumer law directives applicable to consumer contracts of all kinds.However, from the consumer protection perspective, the term goods and services may be considered as too narrow for this purpose.
Firstly, donations or subscriptions to (charitable and other) associations are not covered.36Secondly, referring only to goods and services, immovable property has been excluded from the scope of Directive 93/13/EEC since the EU law concept of goods encompasses only movable items of property.It is established in various EU law directives that define the concept of goods.As an illustration, Directive 1999/44/EC and Directive 2011/83/EU provide almost the same definition, stating that consumer goods shall mean any tangible movable item, with the exception ofgoods sold by way of execution or otherwise by authority of law, -water and gas where they are not put up for sale in a limited volume or set quantity, -electricity.37 Thus, the use of the concept of goods and services in Directive 93/13/EC can significantly limit its applicability.Aimed to ensure protection against unfair contract terms in all possible consumer contracts, this directive is not likely to cover timeshare contracts, the focus of which is immovable property.
These semantic borders of the concept of goods and services were obviously taken into account by other legislators.Thus, the concept of product was introduced instead of goods and services in Article 2 of Directive 2005/29 that reads as follows: "Product means any goods or services including immovable property, rights and obligations."38 National courts also make attempts to give Directive 93/13/EEC its due applicability to all consumer contracts.For example, in Khatun & Others v. Newham39 the national court in the UK ruled that Directive 93/13/EC and English acts cover contracts of selling land thus making immovable property a subject matter of Directive 93/13/EC.
The term produktsiia used in Ukrainian consumer law will not work in the same way as the term product in Directive 2005/29, since it encompasses goods, services and works40 and does not include immovable property.Yet, exactly this concept is used in Art.18 on unfair contract terms, which means that after thorough interpretation of each concept, provisions of this article do not have the designed extension.In all other cases it is used in the same way as the EU law term product, i. e., in Art.11 on consumer credit contracts where it has been practical to speak about goods, services and works in the same concept.Timeshare directives have not been transposed into the Ukrainian legal system, but if there will be a necessity to introduce the concept that would be equivalent to the EU concept of product and have in itself the concept of goods and services combined with immovable property, the concept of ekonomichni blaha (economic goods) can be introduced.Although this term has been known from the realm of economics and has not been used in consumer protection law, its concept seems very broad, as it covers practically everything "that can be purchased in the process of trade for a certain price […] in a limited amount."41Thus, for the cases of necessity to create the verbal form for the domestic terminological equivalent to the EU term, it is essential to take the comparative approach, keeping in mind that the majority of EU law terms were formed on the basis of terms and concepts taken from different domestic legal systems within the EU.Therefore, it can be helpful to compare versions of translation of the EU term in several languages (at least English, French and German) before coming up with the new term in the Ukrainian legal system.This comparison of different language versions often prompted the choice of a Ukrainian equivalent in the already cited English-French-German-Ukrainian dictionary of EU terms.42

Lexical Parallelism in a Source Legal System
Another hazard in the source legal system is lexical parallelism that results in terminological inconsistency.
Inconsistency within the EU law can be observed with the concept of operator of a means of communication in the directives 97/7/EC and 2002/65/EC.In the later Directive 2002/65/ EC the lexical form of this concept was changed to operator or supplier of a means of distance communication, whereas the concept itself remained, which can be seen from the copied definition in the initial directive: "…any public or private natural or legal person whose trade, business or profession involves making one or more means of distance communication available to suppliers."43 The fact that the same definition was applied to different lexical forms means that both terms have the same concept as their meaningful content, i. e., they are terminological duplets.However, perfectly suitable for the term of operator of a means of communication, the definition above is inappropriate for the second verbal version of the same concept, since it violates the main rule of definition formulation.The rule states that the same terminological element cannot be repeated in the definition of its term.Thus, explanation of operator or supplier of a means of distance communication as "making […] means of distance communication available to suppliers"44 does not make sense and gives bizarre results in the attempt of interpretation.
The situation starts clearing up after observing the other terms from the two directives in focus.In addition to the concepts of operator of a means of communication (operator or supplier of a means of distance communication in Directive 2002/65/EC) both directives contain the concept of supplier, a separate terminological unit defined as "…any natural or legal person, public or private, who, acting in his commercial or professional capacity, is the contractual provider of services subject to distance contracts."45 The core difference between the previously observed concept expressed by two synonymic terms and the second concept of supplier is that the first one is a maker, when the latter is a provider of means of distance communication.Nevertheless, the puzzle lingers and lays in the fact that in one case supplier is an element of a term, and in another it is a whole term.
The Ukrainian translator of Directive 2002/65/EC searched for a way to avoid repetition of the same lexeme supplier in the term and its definition and provided different equivalents for the term supplier on the one hand and the terminological element supplier on the other: postachalnyk (supplier) for the EU supplier, and provaider (provider) in the term operator abo provaider dystantsiinoho zviazku46 for the EU law term operator or supplier of a means of distance communication.

Difficulties of Transferring Legal Concepts Detected in a Target Legal System
It has been shown how important the quality of legal concept is in ensuring its successful transfer.However, it is not the only prerequisite and certain adjustments on the side of the recipient legal systems should also take place.
In fact, all difficulties in this category come from what can be called 'incomplete harmonization' on the level of terminology.Obstacles observed here usually emerge after the concept has been brought to the target legal system, but has not been completely adjusted there.Contrary to the above listed difficulties in a source system that hinder transferability of a piece of foreign law, the number of linguistic difficulties presented further in this subsection influence the applicability of this piece of law, as the functionality of law in a new legal system directly depends on the functionality of its concepts.
Different linguistic difficulties in a target legal system come into play with the newly represented equivalents in a target legal system on the one hand, and already existent equivalents in a target legal system that was to be adjusted to the EU law concept on the other.In case of newly introduced concepts the types of equivalents misrepresentation involve: 1) malfunctioning placing of a new concept among other terminological units in the target legal system, the outcome of which is indistinct or non-harmonized semantic relations with other legal concepts, terminological polysemy etc.; 2) ineffective description of the concept in its definition; 3) misrepresentation of an EU law concept, which has been overlooked or disregarded when the foreign law was being transposed.Whereas difficulties coming up with adjustments of native national law equivalents can be: 4) semantic deviations in a target language from the EU law equivalent, when the national law concept can have a broader or a narrower scope; 5) exical parallelism in the target legal system.
Difficulties related to deviation of the semantic scope of the concept (intension) are especially easy to let occur without special attention to depicting properties of the concepttransplant.

Broader Intension of Equivalent Concept in Domestic Legal System
Intension of a legal concept is comprised of its properties.Properties can be classified into typical, defining and accompanying.47Defining properties are of particular interest, since they play a crucial role in concept formation and therefore are necessary in the transplanted concept.Accompanying properties only narrow the concept's extension and do not cause direct effect on the concept's semantic scope as they do not serve to distinguish a concept among others in the system.
Taken rather dramatically in the common law reality of the United Kingdom, the concept of good faith is not new in Ukrainian legal system and was used without any reservations in a respective provision of Art.18 of Law No. 3161-IV representing Directive 93/13/EEC.
The Ukrainian equivalent dobrosovisnist (good faith) was initially introduced in Art. 3 of the Civil Code of Ukraine.Along with the concepts of spravedlyvist (justice) and rozumnist (cleverness), good faith is used in the Civil Code48 to set requirements each obligation must be based on.Lately, in addition to the Civil Code, the concept of good faith can be found in many other legislative acts, such as the laws "On Protection of Consumers' Rights," "On Protection from the Bad Faith Competition," "On Securities and the Stock Market" and others.It therefore can be stated that the notion of good faith has become a general legal category, not belonging exclusively to any particular field of law.
Some legal practitioners took the occurrence of these three obscure notions in the Civil Code rather critically, anticipating their flexible use in the judicial system.Others have been warning that ignoring these notions in civil law practice may turn them into 'dead norms' to the detriment of all civil law relations.49In any way, the principle of good faith caught the attention of many Ukrainian scholars who examined it in the context of international law (Smitiuh), contract law (Majdanyk) and civil law in general (Pavlenko, Kuznetsova, Bodnar).These studies were used in this paper to make up the overall interpretative picture of the concept of good faith in the Ukrainian legal system.
Thus, the notion of good faith had been already functional in Ukrainian civil law before the provisions of the Unfair Contract Terms Directive were taken into consideration in the amended 2005 Law No. 3161-IV.
Analyzing the specific use of this concept in different legal acts, the following general interpretation of good faith in the Ukrainian legal system can be accumulated.In its nature, good faith is a category with two sides: subjective and objective.The subjective side refers to the persons' attitude to their acts, assessment of their own behavior.Here good faith is an evaluative category as are the issues of morality and ethics alike.Due to its obscurity, this side can hardly be grasped in a legal reality, always tending to be so strict and precise.Contrary to that, the objective side of good faith is strictly fixed in Ukrainian law as generally adopted standards of good faith behavior that appear as a list of rules of business conduct, judicial practice etc.In this second nature, good faith behavior is divided into certain stages: (1) good faith during the negotiations on a pre-contract stage; (2) good faith in negotiating the terms of a contract; and (3) good faith on the stage of obligation fulfillment.On this objective side, the concept of good faith in Ukrainian law acquired rather concrete semantic characteristics that enable to recognize a particular expression of good faith in reality.However, as will be seen later, the national law equivalent is much broader compared to the EU law concept.
The principle of good faith is not an abstract construct in EU legislative acts.It is realized in concrete norms and requirements of European contract law.Therefore it makes sense to compare the concept of good faith as used in EU law with its functional counterpart in the Ukrainian legal system.Although the concept of good faith is not defined in the text of Directive 93/13/EC, from the context it is clear that the principle of good faith in this particular EU document covers only the behavior on the stage of deciding on contractual terms and partially on the stage of pre-contractual negotiations, which is only the second stage in the general definition in the Ukrainian legal system.This fact must be taken into account in the process of adoption and interpretation of Directive 93/13/EC.In this overlap between the EU concept coming within Directive 93/13/EC and the already native Ukrainian concept, the principle of good faith is aimed to "govern conclusion of consumer contracts and standard/typical contracts with the patterns and forms prepared in advance."50Thus, keeping in mind the broadness and complexity of the concept of good faith in EU law and Ukrainian law, it should be always interpreted in consumer law with the reference to the characteristics of unfair terms and the list of terms that are regarded as unfair in Law No. 3161-IV.

Narrower Intension of the National Law Equivalent
The key concept of the Unfair Contract Terms Directive is illustrative as regards terminological equivalents in national law that can have a narrower scope.
The concept of unfair terms appeared for the first time in EU law in the first EEC Commission program in the area of consumer rights protection in 1976: a project of the Directive on the Standard Terms Used in Consumer Contracts.In 1984 the Commission of the European Union proposed new regulations on the Community level that defined the concept of unfair terms and listed those terms that could be treated as unfair.In 1990 the Commission issued a Directive that established control against abuse of the general terms in consumer contracts.51However, there was no difference between previously negotiated terms and pre-formulated terms that was later distinguished more effectively in Directive 93/13/EEC.Consequently, characteristics of unfair terms appear as follows.
The first characteristic of the EU law concept of unfair terms is (1) its relation to consumer contracts.Directive 93/13/EC52 expressly states that these terms can occur only in consumer contracts, i. e., those concluded between a consumer on the one side and a seller or supplier on the other.Thus, the concept of unfair terms cannot be applied to any other possible type of contracts.According to other characteristics, unfair terms are: (2) only those terms that were not individually negotiated with a consumer; (3) contradicting to the principle of good faith; (4) causing significant imbalance between the rights and obligations of the parties, which is (5) in favor of the seller or supplier for the detriment of consumer.
These characteristics can basically be viewed as criteria necessary for a term to be called unfair.For a linguist these criteria are characteristics of the concept that, when laid together, form a definition.It is an intension of the concept; whilst a list of all possible terms that can be called unfair is an extension.
The concept of unfair terms appearing in Directive 93/13/EC is entirely new for Ukrainian law.It was a niche in the conceptual system that should have been filled.It was first introduced in 2005 when the Ukrainian law "On Protection of Consumers' Rights" was amended in accordance with the new EU legislation.
Law No. 3161-IV provides that "[t]he contract terms are unfair if, contrary to the principle of good faith, it leads to the significant imbalance in contractual rights and obligations to the detriment for consumer."53Hence, analyzing this definition the following characteristics can be outlined: 1) contradiction to the principle of good faith; 2) significant imbalance in contractual rights and obligations between the parties; 3) detriment to the consumer.
In a majority of conceptual characteristics, the concept of unfair terms in Ukrainian law corresponds to the equivalent concept in Directive 93/13/EC.The only conceptual feature not mentioned in Ukrainian legislation is a prerequisite that unfair terms must necessarily be in a contract that has not been individually negotiated.As Khanyk-Pospolitak R. reasonably remarks about the legal consequences of the absence of this characteristic,54 by excluding this characteristic from the scope of the concept Ukrainian legislators created more favorable legal conditions for concluding the so called standard/typical contracts containing terms consumers can rarely reject.Despite this move in favor of the seller, Law No. 3161-IV contains the inexhaustible list of terms that are considered unfair in Ukrainian national law.

Non-harmonized Semantic Relations with other Legal Concepts
Each concept-transplant, appearing in a new terminology system, enters in different semantic relations with other concepts in the system, for "…no transplant is an island."55Legal experts in EU law stress the importance of distinguishing the concept in focus from other legal concepts, both in the source legal system and in the target, which is crucial to conduct before using the EU concept in the domestic legal system.Identifying conceptual relations in the source system helps to define the 'potentials and limitations' of the concept-transplant.As an example, this is exactly what authorities from the European network of legal experts in the nondiscrimination field do when writing about relations of the concept of indirect discrimination with the concepts of direct discrimination, discrimination by associations, positive action, and positive obligations.
It is frame semantics that studies a concept in its frame, a group of related concepts in which one concept can impact an entire system and vice versa.
Not isolated from one another, concepts form logical relations of subordination, coordination or opposition through similarities and differences in characteristics they are comprised of.For this reason, when the concept is transferred to the new conceptual system, it becomes surrounded by new concepts with which it would have to set a new system of relations: paradigmatic (with subordinate concepts) and syntagmatic (with non-subordinate concepts).
In the context of legal adaptation it is rational to separately have a look at relations between newly introduced concepts in a target system as equivalents to EU law concepts.In essence, hazards connected with semantic relations between such concepts remain the same as in a source system.However, lack of distinction in semantic relations between the newly introduced equivalents usually has subjective grounds.It is either because of insufficient preliminary research done before introducing the new concepts or because of the imprecise representation of the new concepts in a system of terms.As a result, indistinct semantic relations affect the smooth applicability of legal provisions in judicial practice.
In Ukrainian legislation the concept of ofisni abo torhovelni prymishchennia56 (business or trading premises) was introduced as an equivalent of the concept of business premises from Directive 85/577/EEC.Although business or trading premises is used throughout the whole Art. 12 as one non-divided terminological unit, Art. 1 contains definitions for ofisne prymishchennia (business premises) and trading premises as separate terms.Nonetheless, even with these separate definitions, a correlation between the concepts of ofisne prymishchennia (business premises) and torhovelne prymishchennia (trading premises) remains blurred.
As stated in Law No. 3161-IV, "business premises are any premises (building etc.) where economic entity or its branch, or its subdivision, or its representative office, is situated;" "trading premises are a real estate complex that occupies a separate building (business premises) or is situated in the installation specially equipped for commercial activity, where the economic entity undertakes the selling of goods." In order to provide a demarcation between the given concepts, each definition can be split into separate conceptual characteristics that can later be compared.Both types of premises are occupied by subiekt hospodariuvannia (economic entity); but torhovelni prymishchennia (trading premises) serve specifically commercial activity, meaning trading, and among other places can be positioned in business premises.Thus, according to these definitions, business premises in some cases can function as trading premises.
Partially overlapping, definitions of the terms are not being helpful in investigating what actually motivated introduction of the complex term trading or business premises instead of business premises, for they do not point out the differential conceptual features.The only way to shed some light on semantic relations between these concepts is inferring from the context of a respective piece of law.For instance, one of the potential versions is built upon accordance with the relations between other similar terminological pairs used in the text, namely tovary ta robota/posluha (goods and work/service), prodavets ta vykonavets (seller and executer).
Throughout the entire legal act there is a tendency to make a clear distinction between 1) the seller or (rarely) manufacturer who sells goods; 2) the executer who (1) executes work or (2) provides services.
It can be assumed that trading premises is a complex exactly where the seller or manufacturer sells goods, whereas other activities of manufacturing of goods, execution of work and provision of services are performed in business premises.This version is, however, is built on mere inferences.What is clear in this situation is that the EU concept of business premises appears to be much broader than its Ukrainian direct counterpart ofisni prymishchennia.The reason may lie deeper, in the much broader semantic field of the terminological element business in comparison to the significantly narrower semantic field of the element ofisnyi (office).This remark can justify the use of a complex term instead of using the EU concept of business premises.More clear justification as to the use of such a term should have been given in the definitions of the terms, which would have brought immediate clarity to the text of Art.12.These are examples when the law fails to completely specify the semantics of a term occurring in legal norms.

Polysemy and Semantic Variability in a Target Legal System
Coming back to the changes in the scope of applicability of EU law in national law, due consideration must be given to polysemantic terminology.
Directive 85/577/EEC governs contracts negotiated away from business premises.In a respective article of Law No. 3161-IV the term negotiated is translated as ukladenyi.After consulting with a dictionary it becomes clear that ukladenyi is a polysemantic legal term that in the context of contract law encompasses two English concepts: (1) concluded and (2) negotiated.It is critical to interpret the Ukrainian term in a right way and choose the correct concept of those two listed that would correspond to the concept in Directive 85/577/EEC.The strategy is to indicate which meaning of the polysemantic term functions in this particular case.To be specific, correct interpretation can be ensured in a definition of the term, which, however, has not been done in Law No. 3161-IV.There is no definition that will explain what constitutes ukladenyi in this law.When directly translating the definition as it is, without any presuppositions, it looks as follows: "contract [ukladenyi = concluded/negotiated?] outside of trading or business premises means a contract [ukladenyi = concluded/negotiated?] personally by the consumer at a place other than the trader's business premises." To gain some comprehension of how the meaning of a single term can affect the meaning and applicability of the whole article, both plausible interpretations may be examined.At this point it is interesting to note that ukladenyi (concluded, negotiated) is not even a key term, but functions as a regular terminological unit.If the whole Art. 12 deals with negotiated contracts only, it means that its provisions will extend to those contracts that are signed no matter where, which does not make sense at all.Thus, Directive 85/577/EEC specifically governs contracts concluded, i. e., signed away from business premises.The place where the contract terms were negotiated, or whether negotiation between the parties preceded conclusion at all, does not matter.
In the meantime, Directive 85/577/EEC is not at all helpful in identifying the right concept in this case of the polysemantic Ukrainian term.On the contrary, in the title of Directive 85/577/ EEC one reads about "contracts negotiated away from business premises," whereas Art. 1 states, that "the Directive shall apply to contracts […] concluded [away from business premises]."The legal terms concluded and negotiated are not synonyms, which can be verified referring to Black's Law Dictionary,57 where in relation to contracts to conclude means (1) to ratify or formalize (a treaty, convention, or contract), or (2) to sign (a contract, letter, etc.); and to negotiate means (1) to communicate with another party for the purpose of reaching an understanding, or (2) to bring about by discussion or bargaining.As it can be seen, these terms do not coincide in either of their meanings.
Several general remarks as to all definitions can be made at this stage.Firstly, a legal definition of a term must not contain other indefinite terms within itself; it is supposed to be a clarifying measure, not a source of other ambiguities.Secondly, definition must be selfexplanatory; it is definition, which is aimed to be used for further interpretation of legal provisions where this term appears, and not legal provisions to interpret a definition, which is exactly what has happened with the Ukrainian Art. 12 and definition of the term ukladenyi (concluded, negotiated).It is suggested to use a more precise term pidpysanyi (signed) instead of ukladenyi (concluded) when defining the concept of contract concluded away from business premises.This slight improvement in formulation of definition can ensure the right functionality of the EU law directive in the national legal system.

Lexical Parallelism in Terminology of a Target Legal System
Usually lexical parallelism emerges when a new concept has started functioning in a legal system.It is a normal process almost each new concept undergoes in the beginning when adjusting in a terminological system.
In addition to the right (corresponding to EU law) interpretation in national law, filling the niche also requires nomination of the concept.Up to now, four versions of translation of unfair terms have been used in Ukrainian scholarly texts: nesumlinni umovy, nedobrosovisni umovy, nechesni umovy and nespravedlyvi umovy.Two of these versions -nedobrosovisni umovy and its synonymic form nesumlinni umovy can be confused with the Ukrainian equivalent of good faith introduced in the Civil Code (dobrosovisnist).In the official Ukrainian translation of the Directive good faith is translated as sumlinnist and unfair terms as nesumlinni умови.This choice of word forms for the concepts of good faith and unfair terms is highly unfavorable.Although a certain relation indeed exists as, according to the Directive, unfair terms in the contract indeed contradicts the principle of good faith, this particular translation of terms gives rise to additional confusion in defining conceptual relations between good faith and unfair terms: the choice of Ukrainian equivalents suggests that the concepts in focus have generative relations and unfairness is the antonym (direct opposite) to good faith.Thus, an equivalent nesumlinni umovy for unfair terms can be dropped from the four possible Ukrainian terms.The linguistic forms nechesni umovy and nespravedlyvi umovy fully correspond to the English form of unfair terms.Thus, it is recommended to maintain the word form nespravedlyvi umovy used in Law No. 3161-IV (Part II Art.18).
After the due amendments had been made under the influence of Directive 2002/65/ EC the concept of dohovir, ukladenyi na vidstani (contract signed at distance) was introduced into the Ukrainian legal system with no substantial semantic modifications.Yet, the formal representation of the concepts has not been standardized, since another term, different from those in the Law "On Protection of Consumers' Rights," is used in other legal texts: dystancyinyi dohovir58 (distance contract).
This lexical parallelism is observable in texts of Ukrainian laws on the one side and scholarly commentaries and translations on the other side.It must be noted that lexical parallelism is a normal process in all terminological systems, as it takes some time until the concept requires a stable form in a system of terms of a specific field.However, with time, newly adopted terms used in commentaries to legal materials must be correlated with their verbal forms in law to avoid incoherency and to make the EU concepts recognizable in the Ukrainian legal system.Parallelism cannot be an excuse in cases of native concepts that have been functioning in the legal system for a long period of time and acquired a standard form.
It is only through analysis of legal concepts using linguistic methods together with comparative law strategies that we can study the process of the transplantation of legal concepts.Legal perspective that is interesting in a concept as an accurate reflection of legal reality helps to obtain a deeper understanding of semantic and functional features of a legal concept, its relation to context.In the meantime, linguistic perspective explains which semantic qualities make a legal concept travel and which processes take place when a concept moves from one legal system to another.Moreover, it reveals causes of different pitfalls in the harmonization of law, i. e., those that are related to languages, as well as suggesting solutions for each type of negative effect.
When it comes to the adoption of EU law, there are precautions for not transferring law, but there is no measure for not transplanting a term.Therefore, legislators are quite free in their choice: they may omit a concept if it is not the key one; they may use a native concept as an equivalent, changing its semantic structure by adding or removing properties; finally they may bring a EU term along with the concept-transplant, which usually happens when the national system does not have a concept at least slightly reminding the foreign one in its characteristics or functions.The two last versions should both be treated as transplantations that require harmonization actions at the national level.
The linguistic reasons for transplantation failures of legal concepts are detected in both source EU and target Ukrainian legal systems in consumer protection legislation.They are polysemy and semantic variability, lexical parallelism, non-harmonized semantic relations with other legal concepts, narrower or broader intension of an equivalent in national law than that of the source concept, misleading verbal form of the source legal concept, indistinct semantic relations of the concepts.
In order to prevent the cause of these linguistic factors the following checklist for a legal linguist can be proposed in work with legal concepts-transplants: 1) identifying the core characteristics of the legal concept to be transplanted; 2) comparing the linguistic forms this concept has in different languages; 3) defining the concept in national legislation, consistently transposing its core characteristics (if any are missing); 4) checking the definitions and forms of other concepts from the same semantic field against the newly transplanted concept; 5) monitoring the consequences of the use of the concept in a legal provision in order to check whether its function corresponds to the one assigned by the legislator.

22
John Bell, "Mechanisms for Cross-Fertilisation of Administrative Law in Europe," in New Directions in European Public Law, ed.J. Beatson and T. Tridimas (Oxford: Hart Publishing, 1998).23 Uwe Kischel, "Legal Cultures -Legal Languages," in Translation Issues in Language and Law, ed.F. Olsen, A. Lorz and D. Stein (New York: Palgrave Macmillan, 2009), 12.