The task of the European Court of Justice is to ensure that the law is
observed in interpreting and applying the Treaties. This duty is carried out in
a transnational constitutional environment where interpretation and application are to a large extent divorced from each other.
An array of approaches to assessing the Court’s work already exists. The
distinct underlying assumptions of each perspective affect how Court practice
is interpreted and evaluated. In terms of legal interpretation, at the one
extreme would be those who subscribe to a historical-originalist – or
conserving – approach and at the other those subscribing to an uncritically
teleological or dynamic approach premised on furthering integration. Neither extreme
necessarily reflects in either descriptive or normative terms a fair or
realistic understanding of the Court, its work, and the outcomes of legal
interpretation.
Even if in reality the differences were more a matter of
degree, developing a better balanced approach is useful.
The approach advocated here is called Court of
Justice legal reasoning. The approach is critical towards offering
generalisations concerning the Court’s work based on purposively chosen
case-law, downplaying the role of law in not only facilitating but also
restraining the Court’s choices, and overemphasising teleology or integration
as pre-designated and permanent explanatory factors of legal evolution. The
Court of Justice legal reasoning approach is firmly anchored to actual case-law
analysis, instead of abstract legal theory, which ensures it does not become
wholly disconnected from the everyday of courts. Moreover, the approach takes
into account how the Court keeps applying its relatively conventional
self-assumed criteria of legal interpretation, considers interpretations
offered in preliminary rulings in their systemic and factual context, and
generally views the Court as the constitutional court of a legal order. F
inally, the approach builds on sincerely listening to the Court: considering
the meaning of silences in reasoning, ways of restrictive interpretation, and
the distinction between singular cases and lines of cases in defining the
degree of universality of interpretations included in them. The aim is to
further the understanding of scholars and practitioners in terms of how legal
interpretations pronounced, especially in preliminary rulings, both have been
and could be interpreted by their legal audience.
The following message was sent to me some time ago. My apologies for the long delay in posting. Note the short deadline.
to Friedman
(ed) 
